Rules for Rulers: A Wall of Separation between Law and Policy

Article excerpt

RULES FOR RULERS: A WALL OF SEPARATION BETWEEN LAW AND POLICY Reading Law: The Interpretation of Legal Texts. Antonin Scalia & Bryan A. Garner. St. Paul: West, 2012. 567 pages. $49.95.

I. Introduction

Justice Scalia and Bryan Garner have written a treatise seeking to organize and defend the proper use of systematic principles for ascribing meaning to legal documents.1 Even if learning how these "canons" work is the only reason someone wishes to read the book, it is reason enough. Like most treatises, it aggregates extraordinary amounts of technical information. Unlike any other treatise, the erudition in this one goes down more like an after-dinner liqueur than a dose of medicine.

But there is far more to this book than a mere list of principles of statutory construction, no matter how entertaining the presentation. It is also-perhaps even primarily-a meditation on the rule of law in America. On both the first and last pages of their treatise, the authors express concern that the rule of law has eroded. "Our legal system," they begin, "must regain a mooring that it has lost: a generally agreed-on approach to the interpretation of legal texts."2 The "neglect" of that traditional methodology has diminished the "predictability of legal dispositions" and "weakened our democratic processes."3 They conclude, with guarded optimism, that in the future "the rule of law will be more secure," but only if judges "use proper methods of textual interpretation."4

In between these statements, Scalia and Garner offer 414 pages describing the ailment and the prescribed cure in careful detail. The "proper methods of textual interpretation" are laid out as fifty-seven canons, offset by thirteen legal heresies that courts often follow but should avoid.5 Collectively, they generate what the authors call "the 'fair reading' method."6 That deceptively simple-sounding label for textualism is simultaneously straightforward in theory and complex in application.

The authors emphasize fair reading that gives rise to fair meaning throughout the book, in part to rebut the straw man criticism of textualism that it is nothing more than "strict constructionism."7 That charge has survived so long because too many conservatives cavalierly call for courts to practice, and the academy to impart, strict constructionism. Likely intended to signal their opposition to the loose construction of willful judges, Republican presidents like Richard Nixon (a lawyer) and George W. Bush made known their desire for v/ivVY-construclionist judges.8 Scalia and Garner, by contrast, assert that "[tjextualists should object to being called strict constructionists," because "that is an irretrievably pejorative term."9 They recount that "in the 19th century, a 'strict' construction came to mean a narrow, crabbed reading of a text."10 They agree that it is "a hyperliteral brand of textualism that we . . . reject."11 Scalia and Garner, echoing Justice Story, repeatedly emphasize that "what is needed is reasonableness, not strictness, of interpretation."12 That is to say, they urge "[ajdhering to the fair meaning of the text," and call this "the textualist's touchstone."13

To outline the contours of a fair reading, Scalia and Garner borrow the "reasonable person" from first-year law school classes, and ask how that "reasonable reader, fully competent in the language, would have understood the text at the time it was issued."14 If that exercise did not involve considerable effort, there would be little need for a treatise explaining how to do it.

Assuming it is possible to achieve the goal by expending that effort, the benefits are clear. Reading a text from that perspective, and then applying it to a case's facts, permits little room for agonizing about what the law ought to be, or what its drafters really wanted to achieve, or how the law might have been better written. This focus on text seeks to maximize predictability and to minimize unforeseen outcomes. …