Sunday, February 21, 2016

Reconsidering Antonin Scalia’s view of “original intent”

Judge Richard Posner at Harvard University
By chensiyuan - chensiyuan, GFDL
From recent correspondence

Edited by Morris Dean

The death of Justice Antonin Scalia occasions our reconsidering his view of the “original intent” of the authors of the U.S. Constitution and his insistence on textually clear interpretations of statutes rather than on legislative intent.
    Scalia’s ideas have served as presumably objective methods in turning back previous, more liberal judgments in favor of conservative notions.
    Richard Posner shredded Scalia’s view of “original intent” in The New Republic (August 24, 2012) in a scathing review of one of Scalia’s then recent books. Judge Posner’s review, “The Incoherence of Antonin Scalia,” was a wonderful refutation by one of the most coherent of American jurists. Posner’s review opens thus:

Judges like to say that all they do when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them. They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.
    The passive view of the judicial role is aggressively defended in a new book by Justice Antonin Scalia and the legal lexicographer Bryan Garner (Reading Law: The Interpretation of Legal Texts, 2012). They advocate 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.”
    Scalia and Garner reject (before they later accept) Easterbrook’s warning. Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.
    We would love to quote the whole thing, but fairness to the original publisher prevents us. And you can read on with a single click and a bit of scrolling.

Copyright © 2016 by Morris Dean

1 comment:

  1. Hi Rolf,

    The problems with clear textual interpretation and original intent are (1) words are rarely so clear that there is only one possible interpretation, and (2) the intent of the framers is hard to determine and still must be understood in its historical context. Further, the divide between strict constructionists and liberal constructionists is a fiction. ALL Supreme Court Justices are liberal constructionists. Let me give you one example. The First Amendment says "Congress shall make no law … abridging the freedom of speech." Yet virtually all Supreme Court Justices, including Scalia, have ascribed to the notion that the First Amendment only protects speech that has "redeeming social value" and thus does not protect pornography. A literal reading of the First Amendment would say that "no law" means exactly that, as Justice Hugo Black maintained. I would say that Justices who find an exception for pornography are liberal constructionists, or in more political language, activist judges.