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A Matter of Interpretation

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I'd like to mention, first of all, what this book it not. It is not for the casual observer of the American judicial system. Justice Scalia gives a probing examination of various methods used in Constitutional and judicial interpretation. If the reader is not consumed with learning law, or delineating the intent of the Constitution, this book will probably be a major disappointment.

On the other hand, if you have a solid foundation of knowledge on the judiciary and the U.S. Constitution, you will enjoy this book and will learn a great deal of what Justice Scalia has to offer. Scalia offers up a 50 page paper on the various methods of judicial interpretation, each methods strengths and weaknesses, and the how and why of whether or not each method is viable.

Scalia's paper is then cross-examined by Ronald Dworkin, Mary Ann Glendon, Amy Gutmann, Lawrence Tribe and Gordon Wood. Scalia then offers up his rebuttal and I believe, strengthens his theories of judicial interpretation. I am not going to go into my own how's and why's, as I am a fan of Scalia's and would rather allow the reader to reach their own conclusions.

Whether you like this book, or hate it, one thing is for certain, you will come away with a much better knowledge of the U.S. judicial system, how it reaches some of its conclusions, and what the consequences of continuing with current methods of judicial interpretation will be on our country.

Monty Rainey
www.juntosociety.com

I assume you have seen a description of the book already. The book is good enough to be recommended overall, but there were some disappointments. First, the justice does not stay long on his professed topic, the interpretation of statutes, but goes over into constitutional interpretation. Those who make replies follow gladly, and there is really little on the whole about statutory instead of constitutional interpretation. Moreover, the justice did not make it clear enough to me how his textualist philosophy differs from literalism, which he explicitly disavows. Also dissappointing is that I think the justice could have made a much stronger case for what I do glean to be his philosophy by invoking legal principles already understood when the constitution was written, and especially by invoking Justice Story's brilliant decision in Martin v Hunter's Lessee. In that decision rules of constitutional interpretation are stated clearly and authoritatively, and are much along the lines of what Scalia advocates. Lastly, Justice Scalia's essay does not measure up to the keenness of insight and language he shows in his best dissents, though there are some good moments. Despite these drawbacks, it is a very thought- provoking work and its brevity gives one less of an excuse for not reading it. It is largely free of technical vocabulary and there are no arcane discussions.

I loved the format of the book! Scalia presents his judicial interpretative process, and honestly admits hypocrisy when he occasionally votes ideology rather than using his system. Then, rather than providing a half-hearted attack on his ideological opponents, he invites them to respond to his thesis, each with their own chapter!

You may not agree with Scalia, but you can't doubt his moral courage based on his invitation for criticism in his own book.

I also appreciated the chapter on the structure of Germany's Constitution to help us understand why principle, rather than statue, plays such a big role in American judicial interpretative processes.

Everyone that cares about the Supreme Court should read this book. I have yet to find a better book to learn the motivations and processes utilized by each ideological camp. After reading this book, my ability to understand the logic of the court, for both rulings and the opinions, has been greatly enhanced.

While unintended, Scalia also helped cement my personal belief that a blend of original meaning (aka textualism) and abstract principalism, and not Scalia's textualist approach alone, is by far the optimal method for judicial interpretation based on our Constitution.

Antonin Scalia is blessed with a powerful intellect and a persuasive manner of expression. It's about time that a member of the US Supreme Court explained in terms intelligible to the average "newspaper reader" just what is going on in federal appeals courts. If not all of Justice Scalia's recommendations are correct, he certainly, at long last, has been able to ask the right questions. Proponents of judicial activism (and Scalia graciously shares space with two of the most famous, Tribe & Dworkin) will be hard-pressed to keep up the pretense that federal courts today are much more than arenas for elite social engineers to rework society in their own image and likeness. A fine study in modern legal philosophy, I recommend this work with few reservations. My complete review of Justice Scalia's book can be found in "National Catholic Register" 26 Oct. - 1 Nov. 1997, p. 6. I have seen the review posted on the Web as well.

This book is a real treat for anyone who loves legal (constitutional that is) thought. It would also make a great introduction into what several of the greatest thinkers in the Anglo-American legal profession think. The book is mainly a lecture by Scalia where he lays out his theory of 'textualism,' that is closely grounding constitutional interpretation to the original meaning of the words of the constitutional (or statutory) text. It is a spirited explanation of the theory and includes defenses against some of the more common attacks on the theory. But the book gets better. Four legal experts, Laruence Tribe, Ronald Dworkin, a historian and Glendon all give their comments on textualism. Scalia then replies to these comments at the end. A wonderful look into debate between five incredible minds who often diasgree.

Antonin Scalia might be best described as a conservative American. Conservatism often means not taking the "far-out-there" approach to life.

Although his section of the book is rather short, it is a bit difficult to follow for those of us who are not lawyers. Nevertheless, it is an excellent view into his thinking process. It details the reasons for not siding with contemporary liberal thinking, believing that the U.S. Constitution should be interpreted literally (in most cases).

I read the book a few pages at a time, absorbed what I read, and read more the next day. Frequently, during the responses to his writings by other prominent lawyers, I found myself going back and re-reading parts of his writings again. To complete the book and understand it I probably read the entire book several times - back and forth between the writers.

Whatever your political leanings, it is an insight into why one Supreme Court Justice votes the way he does.

I wish all the Justices would write a similar book so we could understand their viewpoints.

I read this book for a class on the philosophy of law. In his book "A Matter of Interpretation," Associate Justice Antonin Scalia describes his judicial philosophy as that of being a "textualist." For Scalia, textualism means that a judge is bound by interpreting the law without regard for the intent of the lawmakers. "Men may intend what they will; but it is only the laws that they enact which bind us" (17). Justice Scalia is one of the most vociferous opponents of the use of constitutional comparativism by judges to help influence or guide them to a certain interpretation of the law. Scalia, on the spectrum line of judicial philosophy, is a self-described "textualist." His idea of textualism is that, "A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means" (23). Textualism is a constitutional philosophy of original meaning, instead of original intent, as a "strict constructionist" would interpret the text. In addition, Scalia believes that, "It is the law that governs, not the intent of the lawgiver....A government of laws, not of men" (17).

Scalia believes that in a democratic society, change should not come from judicial decrees, but from the people's elected representatives. Thus, one can instantly see that Scalia's views bring him in direct opposition to Justice Ginsburg's "living constitution" philosophy, which at its core embraces constitutional comparativism, and gives judges virtual carte blanche to pen new laws from the bench.

Scalia has vehemently denounced judges who have resorted to constitutional comparativism in their written opinions when adjudicating cases before them. Scalia argues that the only time a judge should refer to foreign law in interpreting a nation's constitution is when she is settling a case dealing with treaty obligations with foreign nations. In every instance where one of his colleagues resorts to the practice of including opinions from foreign court rulings, Scalia has made it a point to take umbrage against this practice in his own written opinions. Most of the instances where Supreme Court Justices have used constitutional comparativism have occurred when they have ruled on cases involving death penalty issues, cases involving the War on Terrorism, and privacy cases dealing with abortion or homosexuality.

Scalia is skeptical of the methodology used by judges who include foreign law in their adjudication process. Specifically, he wonders if judges dabble with constitutional comparativism on a selective basis, only when it fits with their ideas of how the case should be ultimately adjudicated. As an example, Scalia notices that when the court hears arguments about the death penalty or abortion, he observes that his colleagues do not cite decisions or statistics from courts in socially conservative countries in South America, East Asia, or Islamic countries. Thus, he finds that his colleagues are being a bit disingenuous when they "cherry pick" opinions from foreign nations, especially European, and try to use them as examples of how there is a change in the world's social mores that should be considered when adjudicating cases.
Even Justice Breyer agreed that Scalia's point on his and other Justices not citing cases from non-European nations is a fair criticism of their methodology.

Another argument Scalia uses against judges relying on constitutional comparativism, is that the judge is probably not fully conversant on the surrounding history and jurisprudence involved in a particular foreign ruling. An example Scalia uses is the question of whether it is "cruel and unusual" punishment to have a condemned to death prisoner waiting over twelve years, as many American death row inmates do, before her sentence is carried out. The U.S. Supreme Court has not taken up this question; however, Scalia and Breyer see it looming on the court's horizon. Scalia argues that if one looks at foreign case law in Britain before they abolished the death penalty, it would show that the penalty was carried out within two weeks of its pronouncement in court. Many legal professionals in the U.S. point to this and argue that the prolonged period between sentence and execution should be considered "cruel and unusual" punishment. However, Scalia argues that the reason the length of time is prolonged in the U.S. is because of the system of jurisprudence it labors under to ensure a liberal appeals process for condemned prisoners. The reason why the U.S. allows a death row inmate multiple avenues for appeal is as a safeguard against a wrongly condemned prisoner from being put to death. This type of liberal appeals process was not in place in Britain before its courts abolished the death penalty or in other European countries that did the same. Therefore, Scalia makes an important point when he states that judges who want to use constitutional comparativism often times do not take into account the history and judicial background of a particular ruling from foreign courts when using these court's decisions in helping to form their own opinions of a case before them.

Another argument Scalia makes against constitutional comparativism deals more with his own judicial philosophy. As a textualist and a positivist, he does not think that a judge who has the power of judicial review of her nation's laws should be in the business of making moral rulings for her society from the bench, a practice that effectively circumnavigates her nation's legislative branch. In addition, part of what makes Scalia a positivist, is that he believes in the importance of the rule of law. One of the guiding tenants of a nation that adopts the principle that the rule of law is an important foundational precept in their society, is the idea that citizens must not be subjected to ex post facto laws. Essentially, an ex post facto law means that a government body enacts a new law to make an act illegal, and this law is then applied to an agent who committed the "illegal" act before the new law was enacted. Scalia argues that rulings made by judges who are natural law theorist proponents become ex post facto laws for the people before the court, and if judges do this routinely, it would make life for citizens in such a society intolerable.

Finally, like Montesquieu, who was the first person to advocate in his writings for the separation of the judiciary from both the executive and legislative branches of government, Scalia is also a staunch supporter of the separation of powers system of government. Therefore, Scalia does not think it is the prerogative of judges interpreting their nation's constitution or law code to make perceived necessary changes to keep up with changing social values. Scalia believes that in a democratic society, the people are sovereign and thus a nation's constitution and law code should be changed by the people's elected representatives and not by appointed judges. Scalia is not against citizens changing their Constitution or laws, "... the Constitution should keep up to date--but it should keep up to date with the views of the American people." Thus, Scalia argues that judges in a nation who have judicial review powers are only entitled to review the texts of laws enacted by a nation's governing body to ensure their proper application by governmental agencies and its citizens. When it comes to keeping up with societal changes, Scalia believes it is up to the elected representatives to make the necessary changes. "You can have arguments on one side and on the other, but what you have to ask yourself is what does American society think? And the best way, the only way to determine that is certainly not to ask a very thin segment of American society -- judges, lawyers and law students -- what they think but rather to look at the legislation that exists in states, democratically adopted by the American people.

In this tidy book, Justice Scalia puts forward his theory of jurisprudence and takes on the subject of judicial philosophy and what he calls the modern movement of judicial activism. He begins by giving an overview of the history of common law and judicial review, in which he contends that judges historically respected stare decisis - that is, previous rulings. Only in modern times, with the rise of democratic activism, has the desire of judges to "make law" become a problem of significant proportions.

Scalia then gets to the heart of his argument - that the role of the judge is not to ascertain the intent of legislators, but rather to ascertain the meaning of the words contained in a particular document. In this sense, he a textual purist compared to activists who will search out the meaning of particular pieces of legislation by evaluating legislative history, popular press, Congressional record, etc. He concedes that language must be interpreted, but he argues that there is a disciplined approach, and a liberal approach. The disciplined approach he supports would evaluate text within the notion of reasonable interpretation, "placed alongside the remainder of the corpus juris."

"Government by unexpressed intent is simply tyranny," Scalia argues. "That seems to me the essence of the famous American ideal set forth in the Massachusetts Constitution. A government of laws, not of men. Men may intend what they will; but it is only the laws that they enact which bind us."

Scalia argues that the fact that some texts bear multiple interpretations does not sink the enterprise of textualism. The divide on constitutional questions is not between what the framers intended and what they wrote, but rather between original meaning and current meaning. Scalia argues it is precisely the threat of abolishing cherished rights that makes original meaning important - it is a protection against those, (say Nazis) who would seek to impose a new order or new interpretation of acceptable governance. He argues that the notion of a "living constitution" has narrowed the straits of American freedom, not expanded them. The prevailing mood may or may not be just in the eyes of history, but leave that to the legislators and the great debates among thinkers and politicians; don't seek to encode today's moods in tomorrow's constitution through judicial activism. The avenues for changing the constitution and expanding its purview are well known -- otherwise, leave legislating to the legislatures.

Tribe and Dworkin offer the most interesting rebuttals. Dworkin seeks to root constitutional interpretation in broad principles of understanding and rights; Tribe concedes he has no theory of jurisprudence, other than he finds it difficult to accept the certitude of either Dworkin or Scalia that they have the right interpretation. His is a strange argument. Scalia never says the Constitution does not bear multiple interpretations, but he does argue for a more disciplined approach, in which rights are not found willy nilly in the minds of judges and then imposed on the original document by which we are governed. One annoying aspect the book: Tribe responds both to Scalia's original essay and his counter rebuttal within the first rebuttal -- before we have even read Scalia's response. This got a tad confusing and did not add much to the overall discussion.

I think that it is good to read widely and get divergent perspectives. Thus, Christians and Jews should read the Quran and Muslims should read the Torah and the New Testament. Conservatives should read the Nation or the New Republic and visit the DailyKos website and liberals should read the Weekly Standard or National Review and visit RealClearPolitics. The same perspective applies with Breyer's book. Regardless of your perspective, you should read this brief and easily understandable statement of judicial philosophy from a sitting Supreme Court justice. (And, it would also be good to read the counterpoint from Justice Breyer for the same reasons.)

I find this book to be a more interesting and powerful presentation than the recent book by Justice Breyer. In Breyer's book we read just his perspective and much of it is a response to this book by Scalia. In Scalia's book we are given Scalia's approach to judging and then we are given critical responses to that approach by several different authors, not all judges themselves. It is clear that Scalia likes the clash of argument and finds great benefit in that clash.

This book is brief and extremely well written so that even someone untrained in law can still easily follow the arguments and counterarguments. Anyone interested in our Supreme Court would find this book (and Breyer's) to be extremely useful and enlightening.

For myself, I found that reading both books left me believing that while both Justices approach the world in different ways, we are in good hands. Given the incredibly politicization of the Supreme Court, I found these books to be reassuring of the intelligence, character, and skill of these two Justices.

I read the text by Scalia at about the same time as I read Active liberty by Stephen Breyer. I found Scalia's text fun and informative, but Breyer's book wise and informative. I found Scalia's text to be more based on opinions whereas Breyer's text was more evidence based. Scalia's writings more personal emotional, Breyer's writings more emotional on behalf of the American society. I would suggest that any curriculum should include both texts because they, together, build a picture of the US society in judicial terms. To a non-US person, they help us understand why the US societies are as they are, ranging from Sarah Pailin's to Barac Obama's, as well as understand their additional idiosyncrasies.