Vol. 7 No. 7 (July 1997) pp. 316-318.

A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW by Antonin Scalia. Princeton, NJ: Princeton University Press, 1997. 159 pp. Cloth $19.95. ISBN 0-691-02630-0.

Reviewed by Sue Davis, Department of Political Science, University of Delaware.

Readers of THE LAW AND POLITICS BOOK REVIEW may have noticed that THE NEW YORK TIMES BOOK REVIEW’S recent "Hit Parade" of books published by university presses included Justice Scalia’s book (June 15, 1997, page 39). A MATTER OF INTERPRETATION apparently ranks with such distinguished tomes as THE CHICAGO MANUAL OF STYLE and Norman Davies’ EUROPE: A HISTORY. Does it deserve such high esteem? I think not. The reasons should become clear in the review that follows.

Invited to deliver the Tanner Lectures at Princeton University, Justice Scalia took the opportunity to describe the merits of his preferred method of constitutional interpretation—textualism—and to condemn approaches based on the intent of the Framers and an evolving Constitution. Scalia’s essay, "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws," actually comprises only forty-seven pages—a bit less than a third of the book. The remainder of the volume consists of comments from Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon, and Ronald Dworkin; the Justice’s response provides a conclusion.

The manner in which Scalia presents his argument that textualism is neither simplistic nor result-oriented, but logically consistent and rigorous, in fact, the only correct approach to interpreting the Constitution conveys his confidence that all reasonable readers will find the merits of his approach to be beyond question.

Scalia eases into his argument with a discussion of the common law—not really common or customary law at all, he notes—and its uncomfortable relationship with democracy. Proceeding to an explanation of the problem of statutory interpretation, he reveals what he sees as the fundamental error of searching for the intent of the legislature. In Scalia’s view, not only is legislative intent inconsistent with the principle that, "It is the law that governs, not the intent of the lawgiver" (page 17), but relying on legislative intent makes it too easy for judges to mold the law to fit their own preferences. Thus, "The practical threat is that, under the guise or even the self-delusion of pursuing unexpressed legislative intents, common-law judges will in fact pursue their own objectives and desires, extending their lawmaking proclivities from the common law to the statutory field" (pages 17-18). That discussion sets the stage for Scalia to present textualism as the obviously correct approach to interpreting statutes and the Constitution. Textualism purportedly limits judicial discretion, holding judges to the law. Consequently, for Scalia, textualism is the only approach to both statutory and constitutional interpretation that is faithful to the principles of democracy. Indeed, he suggests that we will embrace textualism if we believe that judges "have no authority to pursue those broader purposes [for which a statute could be designed] or write those new laws [that the times require]"(page 23).

The confidence with which Scalia answers the question of how the Constitution should be interpreted" is grounded on the familiar assertion that officials who have not been elected should not invalidate or even modify the policies made by the elected branches of government. Only on the rare occasion when a policy in obviously in violation of an explicit constitutional provision is the judiciary justified in taking action.

Most readers are likely to notice a number of flaws and inconsistencies in Scalia’s argument. Perhaps Political Scientists will object that the will of the majority does not always prevail in legislative decision-making and that policies made by elected officials have been known to controvert democracy. Scalia does not address such issues, however. Indeed, a list of decisions to which he objects includes some in which the Court struck down legislation that interfered with the democratic process. For example, he notes that "a few things that formerly could be done or not done, as the society desired, but now cannot be done" include the following. "[E]lecting one of the two houses of a state legislature…on a basis that does not give all voters numerically equal representation" (REYNOLDS V SIMS, 1964) and "imposing property requirements as a condition of voting" (KRAMER V UNION FREE SCHOOL DISTRICT, 1969) (pages 41-42).

Scalia seems to conceive the Constitution as a set of rules that protect democracy, which he views simply as majority decision-making by legislative bodies. He does not explain, however, how the text of the Constitution supports that view. Indeed, provisions in the Bill of Rights supply textual support for a very different view of the Constitution: an aspirational document that protects fundamental rights against unreasonable majorities. Moreover, his concluding remarks raise questions about his commitment to the majoritarianism that seemingly forms the basis of his entire argument. While he laments the dominance of the evolutionist approach or "The Living Constitution, a ‘morphing’ document that means, from age to age, what it ought to mean" (page 47), he does not refer at this point, to the counter-majoritarian problem. Instead, he contends that the politicization of the judicial selection process has inevitably accompanied the rise of the changing Constitution. Consequently, if the courts are going to change the Constitution, they will do so in the way the majority wants: "This, of course, is the end of Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority." The reader is left to wonder what it is that Justice Scalia fears about the evolving Constitution? Is it the threat of excessive power in the hands of an elite group of non-elected judges who are not responsible to the people? Or is it the danger of the tyranny of the majority?

Laurence Tribe and Ronald Dworkin have provided critiques that are based on arguments they have published previously. Although there are no real surprises in their essays, they manage not only to bring a number of inconsistencies in Scalia’s argument to the reader’s attention but to add considerably more than the Justice’s essay does to our awareness of the complex nature of constitutional interpretation. Tribe, for example, demonstrates that "Scalia is by no means always faithful to his approach" (page 66): The Justice maintains that textualism leads to the conclusion that the Constitution does not prohibit the death penalty. Indeed, he finds support for capital punishment in the Grand Jury Clause of the Fifth Amendment (no person shall be held to answer for a capital crime without grand jury indictment), and in the Due Process Clauses of the Fifth and Fourteenth Amendments (prohibiting deprivation of life without due process of law). Tribe points out that in order for Scalia’s conclusion to follow from his textual evidence, he must rely on the expectation of the writers and ratifiers of the Constitution that the death penalty would never qualify as cruel and unusual punishment prohibited by the Eighth Amendment. Yet Scalia has made it clear that expectations of the Framers should not be considered in interpreting the Constitution as only the text’s meaning is properly part of an interpreter’s inquiry. Additionally, to Tribe the Justice’s votes in the flag burning and hate speech cases suggest that "he has in fact…been guided by a conception of the First Amendment that embodies…a set of principles whose understanding may evolve over time" (page 81). Tribe notes that there is nothing in the text of the document that proclaims the Constitution’s text to be the sole point of reference. Further, he notes, "even if there were, the question of how the text’s meaning is to be ascertained would remain unanswered" (page 78). By underlining the complexities of the issues surrounding constitutional interpretation and by revealing inconsistencies in Scalia’s argument, Tribe raises serious questions about Scalia’s textualism.

Dworkin is perhaps even more effective than Tribe in pointing out the inconsistencies in Scalia’s argument. Dworkin uses the distinction between "semantic originalism," which holds that the rights-granting clauses must be read to say what those who made them intended to say, and "expectation originalism" which requires those clauses to have the

consequences that those who made them expected them to have. Scalia’s explanation of his textualism indicates that he is a semantic-originalist, yet he sometimes acts more like an expectation-originalist. For example, his insistence that the view that capital punishment is unconstitutional is obviously preposterous is consistent with expectation originalism. Dworkin also points out that what Scalia calls the "morphing" theory of the Constitution, which he insists is the dominant interpretive approach, is not only "hardly even intelligible…[but] no prominent contemporary judge or scholar…holds anything like it" (page 122). Indeed, according to Dworkin, the approach referred to as "The Living Constitution" is more accurately understood as endorsing the view that "key constitutional provisions, as a matter of their original meaning, set out abstract principles rather than concrete or dated rules" (page 122). That is a view that Scalia, if he were genuinely a semantic-originalist, might be expected to hold himself.

It should not be surprising that Scalia disagrees with virtually all of both Tribe’s and Dworkin’s criticisms. Although he provides some clarifications and even reformulates some of his argument to minimize the force of their objections, his response amounts to little more than, "I disagree with you". Despite his confidence in the correctness of his interpretive philosophy, Scalia’s argument does not hold up under scrutiny. I look forward to reading Richard Brisbin’s JUSTICE ANTONIN SCALIA AND THE CONSERVATIVE REVIVAL in the hope that it will shed more light on the motivations that drive the Justice’s decision-making than Scalia’s own explanation offers.

Copyright 1997