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A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law (The University Center for Human Values Series) [Kindle Edition]

Antonin Scalia , Amy Gutmann
4.0 out of 5 stars  See all reviews (42 customer reviews)

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Book Description

We are all familiar with the image of the immensely clever judge who discerns the best rule of common law for the case at hand. According to U.S. Supreme Court Justice Antonin Scalia, a judge like this can maneuver through earlier cases to achieve the desired aim--"distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal--good law." But is this common-law mindset, which is appropriate in its place, suitable also in statutory and constitutional interpretation? In a witty and trenchant essay, Justice Scalia answers this question with a resounding negative.

In exploring the neglected art of statutory interpretation, Scalia urges that judges resist the temptation to use legislative intention and legislative history. In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself. Scalia then extends this principle to constitutional law. He proposes that we abandon the notion of an everchanging Constitution and pay attention to the Constitution's original meaning. Although not subscribing to the "strict constructionism" that would prevent applying the Constitution to modern circumstances, Scalia emphatically rejects the idea that judges can properly "smuggle" in new rights or deny old rights by using the Due Process Clause, for instance. In fact, such judicial discretion might lead to the destruction of the Bill of Rights if a majority of the judges ever wished to reach that most undesirable of goals.

This essay is followed by four commentaries by Professors Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, who engage Justice Scalia's ideas about judicial interpretation from varying standpoints.

Editorial Reviews

From Library Journal

How should judges interpret statutory and constitutional law? Gutmann (politics, Princeton; Democracy and Disagreement, LJ 12/15/96) has edited an admirable work focusing on the relationship of the federal courts in interpreting the law. Supreme Court Justice Scalia's essay elaborates on his philosophy of textualism, an approach that eschews legislative intention in favor of focusing on the original meaning of the text to be interpreted. He applies this principle to constitutional law, arguing that we should concentrate on the Constitution's original meaning. Following this essay are brief comments by noted legal scholars Ronald Dworkin, Mary Ann Glendon, Lawrence Tribe, and Gordon Wood. It's deceptively easy to simplify Justice Scalia's ideas to a single sentence, as Gutmann does in her preface: "laws mean what they actually say, not what legislators intended them to say but did not write into the law's text." But the debates over the manner of interpreting legal texts have been held since the very beginning of our constitutional government. This collection certainly isn't the final word, but it offers an excellent starting place. For academic collections.?Jerry E. Stephens, U.S. Court of Appeals Lib., Oklahoma City
Copyright 1997 Reed Business Information, Inc.

From Kirkus Reviews

Supreme Court Justice Scalia posits his views of how statutes and the Constitution should be interpreted; a noted historian and three distinguished legal scholars respond. Scalia, whom journalistic shorthand often renders the intellectual leader of the Court's right wing, sets forth the principles of what he calls ``textualism'' and others call ``original intent.'' To reduce a complex and subtle argument to a sentence, he believes that judges should discern a law's import from the words in which it is stated, not from divining the legislative intent behind its passage or interpreting the text through analysis of its historical context; he finds the application of common-law adjudicature to constitutional issues a threat to democracy. Apart from Mary Ann Glendon, who contributes a rather dry comparison of the techniques of statutory interpretation in European civil-law countries with those derived from our common-law traditions, the replies take exception to Scalia's method. Glendon's Harvard Law School colleague Laurence Tribe lauds Scalia's insistence on a close reading of statutory texts but contends that specific constitutional language must be studied ``in light of the Constitution as a whole and the history of its interpretation''; he doubts that any set of ``rules'' for constitutional exegesis is possible. Ronald Dworkin, of New York University Law School, finds textualism inadequate for constitutional analysis because ``key constitutional provisions, as a matter of their original meaning, set out abstract principles rather than concrete or dated rules.'' Brown University historian Gordon Wood disputes Scalia's contention that judges only recently began usurping authority from elected legislatures. Although all of the authors write clearly, it is unlikely that anyone not fairly well versed in constitutional law will fully grasp their arguments. A small but worthwhile addition to the literature. -- Copyright ©1996, Kirkus Associates, LP. All rights reserved.

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108 of 116 people found the following review helpful
4.0 out of 5 stars Not your father's judicial interpretation. August 17, 2004
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
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24 of 26 people found the following review helpful
4.0 out of 5 stars Recommended, but with reservations. May 15, 1997
By A Customer
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.
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22 of 24 people found the following review helpful
5.0 out of 5 stars A model for all apologetics! March 28, 2005
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.
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10 of 11 people found the following review helpful
5.0 out of 5 stars Legal tour de force December 9, 2001
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.
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24 of 30 people found the following review helpful
4.0 out of 5 stars A fine critique of modern legal philsophy in the US. December 17, 1997
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.
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Most Recent Customer Reviews
1.0 out of 5 stars One Star
Scalia's Constitutional theories and beliefs lock this country into the 1700's.
Published 14 days ago by RJT
4.0 out of 5 stars Though I am card-carrying living constitution advocate, and though ...
Though I am card-carrying living constitution advocate, and though I philosophically dispute just about everything Scalia believes, he argued his case in an often cogent always... Read more
Published 3 months ago by Amazon Customer
3.0 out of 5 stars Book did not come in as described.
I bought this book at a price higher than other cheaper versions simply because the sales description stated it was a collectible. The book arrived like any other ordinary copy. Read more
Published 9 months ago by T. Luong
3.0 out of 5 stars Tough to Rate
This is a difficult book to rate. Not because of the content but because of the man. Scalia purports to be a strict constructionist but based on his interpretation! Read more
Published 18 months ago by Really!
5.0 out of 5 stars If you enjoy Scalia, you'll enjoy the first part of this book
I agree with most of Justice Scalia's opinions, so I thoroughly enjoyed his essay. It was also interesting to read the responses that are also published in this book.
Published on April 22, 2013 by Laurie Buchanan
5.0 out of 5 stars Scalia's effort to justify using original intent to evaluate cases!
This is Scalia's effort to justify the application of original intent to the task of being a justice on the Supreme Court. Read more
Published on September 5, 2012 by Dr. Who, What, Where?
1.0 out of 5 stars Who's he kidding?
Like his opinions, this book is tendentious, fatuous, and costive. That's all I have to say, but I had to add this to meet the 20-word minimum for a review.
Published on July 13, 2012 by R. Schwartz
5.0 out of 5 stars Not easy, but important
This book is not an easy read but it is an important read. For those of us who believe (as I formerly did) that legislators' intent should form a basis for interpretation of a... Read more
Published on October 22, 2011 by R. L. Wexelblat
4.0 out of 5 stars Scalia vs. Breyer
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. Read more
Published on January 10, 2011 by Knut L. Seip
5.0 out of 5 stars Should Be Required Reading in Law Schools
In what may be the most important and timely law book of recent times, Justice Scalia takes aim at the debilitating disease of judicial lawmaking and offers a vigorous explication... Read more
Published on August 7, 2009 by Brian Brockmeyer
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