The Art of Textualism: Constitutional Interpretation in the Age of Scalia
Shiffman, Stuart, Judicature
The Art of Textualism: Constitutional Interpretation in the Age of Scalia Reading Law: The Interpretation of Legal Texts By Antonin Scalia and Bryan A. Garner. West Publishing. 2012. 608 pp. $49.95.
Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan Garner is a disquieting book to read and discuss. At its core level it is a superb and entertaining dissertation on the art of legal interpretation. Through a series of legal canons of construction, the authors have presented a scholarly text that serves as a bible for understanding how judges and attorneys should interpret statutes. Attorneys and judges will recognize many of the canons from traditional case law: for example, words are to be understood in their everyday meaning is a long recognized canon of construction, as is the doctrine that a statute should be interpreted in a way that avoids placing its constitutionality in doubt. Gathering the canons from countless cases and treatises and placing them together in one book make Reading Law an essential component of any legal reference library.
Despite its obvious strengths, something is lacking from Reading Law. In their introduction, the authors state, "One object of this treatise is to remove a facile excuse for judicial overreaching-the notion that words can have no definite meaning. As we hope to demonstrate, most interpretive questions have a right answer." This is not just a textbook explaining the rules of textual interpretation. The authors intend that Reading Law serve as a brief for textualism as the true and best method of judicial interpretation. Yet for all of its scholarly depth and entertaining discussion, Reading Law fails to accomplish that goal. Law is more than the simple application of rules of construction to the facts and issues presented in a courtroom. The authors freely acknowledge that unlike algebra or physics, simple formulas cannot produce the "right answer." And simple application of rules to facts may not always result in justice.
More than a century ago Lord Halifax observed, "If the laws could speak for themselves, they would complain of the lawyers in the first place." How judges, be they textualists, activists or something in between, apply the rules of interpretation to the case before them remains an unanswered question throughout this treatise. This is not intended as a criticism. Instead, it is offered as an observation on the difficulty of presenting a book on a theory of judging when one author is a sitting member of the Supreme Court. For his part, Justice Scalia recognizes this difficulty. Early on, he acknowledges that his judicial opinions of the past three decades may contradict what he has written in Reading Law. But he concludes "the prospect of "gotchas" for past and future inconsistencies holds no fear."
In 2008, Scalia and Garner jointly authored Making Your Case: The Art of Persuading Judges. It was an extraordinary discussion of how judges and attorneys should marshal and present their written arguments to a court. Obviously, the fact that one of its authors was a sitting Supreme Court Justice made the book an important reference source. Meanwhile Garner, a nationally recognized legal writer, has authored more than 20 books, and Making Your Case was an important, well-written book. (Those who suggest that legal writing is dull and boring should spend time reading Scalia and Garner). Reading the Law is equally well-written, but the material is more controversial and may cause readers to view the book in a different light. To do so would be a disservice to the authors.
Scalia and Garner understand the ideological difficulty presented in Reading Law. Pure textualism, the authors argue, cannot be a technique for achieving ideological ends. While the authors are a textualist team, they do not share similar views on legal issues ranging from abortion to same-sex marriage and the Second Amendment. The authors justify their differing views by placing the responsibility for many laws in the hands of the legislature. …