WC has previously described Judge Richard Posner as a national treasure. While WC disagrees with Judge Posner on any number of issues, it’s impossible to fault his courage, his incredible work ethic, his writing skills or his utter willingness to call out folly when he sees it.
All of which makes Judge Posner’s acidic book review in The New Republic of Antonin Scalia’s and Bryan A. Garner’s Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner [Amazon link] both extraordinary and expected. Justice Scalia, after all, is one of nine people who have the opportunity to review and overturn Judge Posner’s decisions. But that doesn’t prevent Judge Posner from doing an absolute intellectual slap down of Justice Antonin Scalia and his judicial theory of textual originalism.
Okay, this is admittedly arcane and “lawyer stuff,” but Justice Scalia’s supreme court opinions impact the lives of all Americans. Justice Scalia claims to rely upon an approach to decision-making called “textual originalism.” The approach to the law is summarized by Posner:
[Scalia] advocates what is best described as textual originalism, because they want judges to “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.” This austere interpretive method leads to a heavy emphasis on dictionary meanings, in disregard of a wise warning issued by Judge Frank Easterbrook, who though himself a self-declared textualist advises that “the choice among meanings [of words in statutes] must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.”
But Posner doesn’t stop at criticizing the illogic underpinning “textual originalism.” He also examines Justice Scalia’s many opinions and holds up for the reader the many, many instances in which Scalia has utterly disregarded his avowed precept. A sample:
Scalia and Garner defend the canon of construction that counsels judges to avoid interpreting a statute in a way that will render it unconstitutional, declaring that this canon is good “judicial policy.” Judicial policy is the antithesis of textual originalism. They note that “many established principles of interpretation are less plausibly based on a reasonable assessment of meaning than on grounds of policy adopted by the courts”—and they applaud those principles, too. They approve the principle that statutes dealing with the same subject should “if possible be interpreted harmoniously,” a principle they deem “based upon a realistic assessment of what the legislature ought to have meant,” which in turn derives from the “sound principles…that the body of the lawshould make sense, and…that it is the responsibility of the courts, within the permissible meanings of the text, to make it so” (emphasis added). In other words, judges should be realistic, should impose right reason on legislators, should in short clean up after the legislators.
All of which vividly illustrates why Judge Posner chose to call his essay, “The Incoherence of Antonin Scalia.” It’s pretty extraordinary for a court of appeals judge to call a supreme court justice incoherent, but, in the case of Judge Posner, we’ve come to expect nothing less. It’s pleasure to read Judge Posner’s complete destruction of Scalia’s book and the principle it espouses.
WC thinks that any theory of legal interpretation which freezes meaning to the time a constitution or statute was adopted is errant nonsense. The world view of the Founding Fathers did not encompass the world of the United States today. An agrarian ribbon of thirteen states with a population of, perhaps, 3 million people has little except history in common with the United States today. Attempts to apply a construct like textual originalism to, say, the internet, or nuclear arms is the purest folly.
Judge Posner just says it better.
(A H/T to Paul Eaglin for the lead to Posner’s review.)