A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW
BY ANTONIN SCALIA
Princeton University Press (1997)
1)In law school law students cut their teeth on common law courses
2)Common law courts performed two primary functions: A) they applied the law to the facts; and B) they made law. [Or, one might say “In the accumulation of those applications of the law to the facts, new law was made.”
3)Common law follows the principle of stare decisis – the principle that a decision made in one case will be followed in the next.
4)Stare decisis requires that one acquire the skill of distinguishing cases – does a case at hand fall within a principle that has already been decided?
5)One looks for the principle or principles in the holdings of cases, and identifying what is the holding of a case is an art form.
6)The common law grows then much like a scrabble board
All of the above would be well and good, except for a trend in governments which we call democracy. In our democracy we adhere generally to a separation of powers between the executive, legislative, and judicial branches of government.
1)Unelected judges and to some extent elected judges creating law in the manner of the common law process is undemocratic. [The law codification movement of the 19th century was a reaction to this. Consider the American Law Institute today that hires a couple of “Reporters” to take the common law, say in torts, contracts, or trusts or wills, and spruce it up – codify it, make improvements, make it more formal, cohesive, with examples, and modernize it – and then put it out there for state legislatures to use or to adopt into statutory law or to adopt as part of their common law. When a legislature adopts a Restatement of the Law then, of course, it goes through a legislative process, with the opportunity for modifications etc. and then becomes statutory law]
2)Today, private-law fields – contracts, torts, property, trusts and estates, family law – remain firmly in the control of state common-law courts. [this seems exaggerated to me since there are many key statutes that play major roles in these fields]
3)But, today private law is turning statutory – Congress and the state legislatures and administrative agencies produce many of the statutes and rules that govern the people.
4)On the Supreme Court Scalia estimates that less than a fifth of the issues the Court decides are constitutional law cases, and if you take away criminal cases, then probably more like one-twentieth of all cases the Supreme Court decides are constitutional law cases.
Consequently the subject of statutory interpretation deserves study as the principal business of judges and lawyers.
1)There are few treatises and a lack of other materials on the subject of statutory interpretation.
2)Legislative intent is often referred to as a source of the meaning of a statute and its interpretation.
3)The problems with legislative intent are many: A) the text is primary, and going behind it is a very dangerous and undemocratic thing to do; B) If you look for legislative intent in comments and records of the legislative body, you will be looking at what some committee said well before the legislation was ever voted on, and the committee may be a very small part of the legislature, and their intent may changed several times between the time their comments are recorded and the time that the legislation is passed; C) your best shot at figuring out what the legislature meant may be to ask yourself what the legislation should have meant to a wise and intelligent person – but, then the answer you will get is the most wise and intelligent answer that you can give, and consequently the statute comes to mean what you think that it ought to mean. The same way that judges decide common law. But, the common law method is undemocratic. “I reject intent of the legislature as the proper criterion of the law.”
4)In Church of the Holy trinity v. United States (1892) Congress had enacted a statute that made it unlawful for any person to “in any way assist or encourage the importation or migration of any alien into the U.S. under contract or agreement made previous to the importation or migration of such alien to perform labor or service of any kind in the United States.” The Holy Church contracted with an English clergyman to come to New York to be its pastor. The Circuit Court for the Southern District of NY held that the church violated the statute and ordered the church to pay the statutory fine. The U.S. Supreme Court reversed the lower court and held: “…we cannot think Congress intended to denounce with penalties a transaction like that in the present case. It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, now within the intention of its makers.”
5)Congress can write foolish or wise statutes. It is not for the Supreme Court to decide which is which and rewrite the ones deemed foolish.
6)This entire practice in 99.99% of the cases in looking for legislative intent should be abandoned. It is not compatible with democratic theory.
7)The text is the law, and it is the text that must be observed.
“Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one out to be…” (p. 23)
1)”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.” (p. 23)
2)“Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible.” (p. 23)
3)The Due Process Clause. It guarantees only process. Property can be taken; liberty can be taken; and life can be taken, but not without the process that our traditions require - a validly enacted law and a fair hearing.
4)A criticism of textualism is that it is formalistic. “The answer to that is, of course it’s formalistic! The rule of law is about form.” (p. 25)
5)Long live formalism. It is what makes a government a government of laws and not of men.
6)Cannons of interpretation and presumptions and rules of construction are of little help, and are often a great hindrance.
7)It is hard enough to provide a uniform, objective answer to the question as to whether a statute means one thing or another, but “it is virtually impossible to expect uniformity and objectivity when there is added, on one or the other side of the balance, a thumb of indeterminate weight.”
8)“The rule that statutes in derogation of the common law will be narrowly construed seems like a sheer judicial power-grab.”
INTERPRETING CONSTITUTIONAL TEXTS
1)“In textual interpretation, context is everything” – words and phrases should be given an expansive rather than a narrow interpretation, but not an interpretation that the language will not bear. (p. 38)
2)He rejects looking to the “drafter’s intent” in both statutory interpretation and in Constitutional interpretation.
3)He will consult the writings of those who were delegates to the Constitutional Convention because their writings display how the text of the Constitution was originally understood. He gives equal weight to Jefferson’s or Jay’s writings even though neither was a framer. (Jefferson was in France).
4)“What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.” (p. 38).
5)Scalia looks for original meaning not current meaning. He rejects the method of those who believe that the Constitution is a body of law that grows and changes from age to age in order to meet the needs of a changing society. This is the common law view of Constitutional law – where the judges determine what the needs are and then “find” that changing law. (p. 38)
6)Should there be a Constitutional right to die. If so, then some judges will find one. Should there be a constitutional right to reclaim a biological child put out for adoption by the other parent? “Again, if so, there is.” “If it is good, it is so.”
7)Never mind the text. “We will smuggle these new rights in, if all else fails, under the Due Process Clause.”
8)“A society that adopts a bill or rights is skeptical that “evolving standards of decency” always “mark progress,” and that societies always “mature,” as opposed to rot. (p. 40)
FLEXIBILITY AND LIBERALITY OF THE LIVING CONSTITUTION
1)“The argument most frequently made in favor of The Living Constitution is a pragmatic one: such an evolutionary approach is necessary in order to provide the “flexibility” that a changing society requires…” (p. 41)
2)But instead of eliminating restrictions on democratic government (read majoritarianism) the “evolving” Constitution has imposed a vast array of new constraints on legislative, administrative and judicial action.
3)And the future agenda of these constitutional evolutionists is the creation of new restrictions on democratic government. Instead of eliminating old constraints they create new ones.
4)And the proponents of the “evolving” Constitution believe that the evolution will always be in the direction of greater personal liberty. “They consider that a great advantage, for reasons that I do not entirely understand. All government represents a balance between individual freedom and social order, and it is not true that every alteration of that balance in the direction of greater individual freedom is necessarily good.” (p. 423)
5)The proponents of the Living constitution do not follow the desires of the American people in determining how the Constitution should evolve, they follow nothing so precise; indeed as a group they follow nothing at all.
6)“As soon as the discussion goes beyond the issue of whether the constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful.” (p. 45)
7)“For the evolutionist… every question is an open question, every day a new day.”
8)“If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against; the majority.” (p. 47)
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