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A Matter of Interpretation: Federal Courts and the Law is a 1997 book authored by Supreme Court Justice Antonin Scalia in which he expounds on his formalist jurisprudence and argues in favor of a textualist, original meaning approach to constitutional and statutory interpretation. Scalia also levies criticism at judicial activism and the concept of the Living Constitution. The book takes the form of a discourse, with Scalia's main essay presented first, followed by individual comments from Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, and concluding with a response from Scalia.

The common-law mindset
Scalia's main essay, entitled "Common Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws," begins with an attack on the common law-intensive curriculum of first-year legal education in the United States, which he views as tending to exercise an insidious influence over budding lawyers for the remainder of their legal careers. In Scalia's view, common law judges essentially got to "pla[y] king", as their primary functions were to "mak[e] the law", since there was usually no statute or custom to govern the case and judges had to craft rules out of wholesale cloth, and to distinguish cases, as a means to amend or avoid a preexisting rule in a manner complying with stare decisis. This judicial model proves irresistible for impressionable law students, convincing them it is the proper province of the judge to "devis[e]...those laws that ought to govern mankind": ...[T]his system of making law by judicial opinion, and making law by distinguishing earlier cases, is what every American law student...first sees when he opens his eyes...His image of the great judge—the Holmes, the Cardozo—is the man (or woman) who has the intelligence to discern the best rule of law for the case at hand and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule: distinguishing one prior case on the left, straight-arming another one on the right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal—good law. That image of the great judge remains with the former law student when he himself becomes a judge, and thus the common-law tradition is passed on.

Scalia also finds tension between the common law mindset and democracy, quoting Madison's warning in The Federalist No. 47: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator."

Despite these criticisms, Scalia is careful to explain that his problem is not with the common law in general, which he thinks has proven to be a good method for developing the law in many areas, but with the attitude of the common law judge—which asks, "What is the most desirable resolution of this case, and how can any impediments to that result be evaded?"—and whether it is appropriate for most of the work done by modern judges: statutory interpretation. Since most new law is statutory, the common law mindset is antiquated and improper for the principal business of judges.

Legislative intent as subterfuge
Scalia is dismissive of legislative intent as a proper means of statutory interpretation He sees it as both a theoretical and practical threat to democracy. The theoretical threat is of the people being bound by "genuine but unexpressed legislative intent rather than the law" itself. The practical threat is that common law judges will use legislative intent as a subterfuge to "pursue their own objectives and desires, extending their lawmaking proclivities from the common law to the statutory field." Scalia then singles out Church of the Holy Trinity v. United States as a "prototypical case" where legislative intent served as a cover for judicial intent and expressly triumphed over the text of the law.

Notwithstanding his criticism of legislative intent as an interpretative means, Scalia does accept the doctrine of scrivener's error, which allows a court to correct typographical errors and other mistakes that are apparent from the face of a statute. He defends this doctrine by stressing that the "objective import of such statutes are clear enough," it applies only in an "extreme" set of circumstances, and it is based on the premise that the legislature made a mistake of expression rather than one of wisdom.

Textualism
Scalia next articulates his own interpretive philosophy of textualism. As he explains it, "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." This philosophy is often distilled to the maxim, "text plus context."

Scalia takes pains to distinguish this branch of textualism from strict constructionism, with which it is often conflated. He disdainfully labels the latter a "degraded form of textualism that brings the whole philosophy into disrepute" and admonishes "...no one ought to be [a strict constructionist]—though better that...than a nontextualist."

At the core of Scalia's textualism is the premise that words have a limited range of meaning and that no interpretation that goes beyond that range is permissible. He cites the body of constitutional law known as "substantive due process", used to protect rights unenumerated in the Constitution, as an example of a blatant departure from text that has "enabled judges to do more freewheeling lawmaking than any other." Citing the language of the Due Process Clauses in the Fifth and Fourteenth Amendments, Scalia regards "substantive due process" as an oxymoron and argues that due process only guarantees process.

He concludes his discourse on textualism by answering the charge of some critics that it is "formalistic." Rather than shrink from this label, he embraces it, making the point that "the rule of law is about form" and using the example of a murderer who is caught with irrefutable evidence of his guilt but whom must nevertheless be accorded a trial before he can be punished.

Canons of construction and interpretive presumptions
Scalia defends the use of canons of construction as "commonsensical." He considers a canon simply one indication of textual meaning; if there are more contrary indications, that canon must yield.

He is highly critical, though, of the use of interpretive presumptions that are based on substance (e.g., substantive canons). Scalia views these as "load[ing] the dice for or against a particular result" and increasing "the unpredictability, if not the arbitrariness, of judicial decisions." More importantly, he wonders where the courts get the authority to unilaterally impose rules with such a substantive dimension. Nevertheless, he excepts the rule of lenity from his condemnation due to its sheer antiquity.

Criticism of use of legislative history
Consistent with his textualist philosophy, Scalia does not believe legislative history to be an authoritative indication of a statute's meaning. Beyond his textualist objections, he does not think the use of legislative history even makes sense for those who accept legislative intent as a criterion. This is so because most of the time the issue being litigated is of such detail that a majority of the legislature was unaware of its existence, much less had a preference as to how it should be resolved. But even if the search for legislative intent were a search for something that exists, the reality that most members of Congress are not usually present for floor debates, staffers—not legislators—draft committee reports, and few, if any, members actually read the reports or know what is in them renders the use of legislative history wholly deficient. Genuine knowledge of what is contained in a committee report or transcript of a floor debate is a precondition of its authoritativeness, since the assumption is that the legislative history served as a basis for the vote and thus represents an indicator of legislative intent. In contrast, genuine knowledge of the details of a statute is not a precondition of its authoritativeness; a statute is authoritative by virtue of being passed in the legally prescribed manner.

Scalia believes reliance on legislative history has facilitated decisions based upon policy preferences rather than deterred them, as originally intended by early proponents. Legislative history is easily manipulable because judges are free to place as much or as little weight on an individual element as they wish and histories for major legislation are so extensive, there is bound to be something for everyone. This allows judges to cherry-pick. On the occasions when the legislative history is unfavorable, the willful judge can simply declare it "inconclusive."

Interpreting constitutional texts
Scalia considers the problem of constitutional interpretation to be "distinctive" not because special principles are being applied, but because the usual principles are being applied to an unusual text. Reiterating the importance of context to textual interpretation, he acknowledges that "the context of the Constitution tells us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation—though not an interpretation that the language will not bear."

Scalia is an adherent of the original meaning approach to constitutional—as well as statutory—interpretation. Under this approach, a constitutional or statutory provision is interpreted according to how it would have been understood by a reasonable person at the time of its ratification or enactment. For the same reasons he rejects legislative intent as a proper means of statutory interpretation, he rejects "Framer's intent" as a means of interpreting the Constitution. Yet Scalia does freely consult the writings of delegates to the Constitutional Convention—Hamilton's and Madison's articles in the The Federalist, most prominently. He does so "not because they were Framers and therefore their intent is authoritative and must be law; but rather because their writings, like those of other intelligent and informed people of the time, display how the Constitution was originally understood." This is why he gives equal weight to the writings of people like Jay and Jefferson, even though neither was a Framer.

Scalia views the "Great Divide" with regard to constitutional interpretation as that between original meaning and current meaning. The latter school is ascendant and affirms the existence of "The Living Constitution." Scalia equates The Living Constitution with common law lawmaking, since under both it is the judges who change the law, but considers The Living Constitution "infinitely more powerful" because it puts judges in position to "trump even the statutes of democratic legislatures."

The Living Constitution, Scalia argues, has largely untethered constitutional law from the Constitution itself, making it more and more a game of distinguishing, extending, narrowing, and, when necessary, overruling precedents, "in order that the Constitution might mean what it ought to mean," than an exercise of textual interpretation. The result of this common law way of making law is the judicial "smuggl[ing]" in of new rights and a Constitution which will not necessarily mean the same today that it meant yesterday. Scalia views changeability as anathema to the very nature of a constitution, whose "whole purpose is to prevent change—to embed certain rights in such a manner that future generations cannot readily take them away." He also cautions that any society that adopts a bill of rights is skeptical of claims that "'evolving standards of decency' always mark 'progress', and that societies always 'mature', as opposed to rot."

Criticism of The Living Constitution
Scalia begins his critique of The Living Constitution by refuting the claim that it is necessary to provide "flexibility" in a changing society. Far from promoting flexibility, he argues, the agenda of the constitutional evolutionists has been to add "new restrictions on democratic government, rather than the elimination of old ones," to impose "[l]ess flexibility in government, not more." Devotees of The Living Constitution seek to take issues on which the state and federal governments are free to legislate either way (such as abortion, capital punishment, and assisted suicide) and remove them from the public discourse by way of constitutional enshrinement. As such, Scalia argues that devotees of The Living Constitution generally "do not seek to facilitate social change but to prevent it."

Scalia then cites the few instances where The Living Constitution has facilitated social change to undermine the argument of proponents that evolution is always in the direction of greater personal liberty. (He admits this does not trouble him as a matter of principle, as 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.") Nevertheless, he cites the modern Court's limitation of the constitutional protections afforded to property as the clearest example that The Living Constitution does not always evolve in favor of liberty. He also points to the weakening of Second Amendment rights and the Court's abridgment of the Confrontation Clause in Maryland v. Craig as evidence of The Living Constitution working a reduction of express rights. Scalia concedes that society as a whole is probably happy with the Court's decisions in these cases, but, he explains, the possibility that a future generation might try and abandon rights the Founders deemed essential was the exact reason why they created the Bill of Rights.

Next to Living Constitutionalism's "incompatibility with the whole antievolutionary purpose of a constitution," Scalia considers its lack of agreement—and the impossibility of agreement—upon a guiding principle of evolution to be its greatest defect. It is so amorphous and subjective that it offers no standard as to what judges must consult to determine when and in what direction evolution has occurred. He concedes that originalists don't always agree on what the original meaning was or how to apply it to modern circumstances, but they at least know what they are looking for: the original meaning of the text. Originalists don't have all the answers but they have many, whereas everything is an open question for evolutionists. To amplify this point, he cites Justice Brennan's, Justice Marshall's, and Justice Blackmun's contention that the death penalty was unconstitutional even though it is expressly contemplated by the Fifth and Fourteenth Amendments.

Scalia concludes by arguing that ultimately "an evolving constitution will evolve the way the majority wishes." The public will only be willing to leave interpretation of the Constitution to lawyers and courts as long as they believe it's lawyer's work, like statutory interpretation; if, however, the people come to view the Constitution as a document that means not what it says or was understood to mean, but what it should mean, they will cease looking for qualifications like "impartiality, judgment, and lawyerly acumen in those whom they select to interpret it." Instead, "they will look for judges...who agree with them as to what the Constitution ought to be."

Scalia worries we are headed for such politicization of constitutional interpretation, if we have not yet already arrived. The people "have been converted to belief in The Living Constitution," and the majority, through the confirmation process, will see to it that the Constitution is written anew the way it wants. This development will be the end of the Bill of Rights, since its "meaning will be committed to the very body it was meant to protect against: the majority." Scalia believes that in "trying to make the Constitution do everything that needs doing from age to age," evolutionists have "caused it to do nothing at all."

Gordon Wood
Wood, being a historian and not a lawyer, focuses his note on the historical evolution of the role of the judiciary in America. He agrees that "modern judges have tended to run amok, have become makers rather than interpreters of law, and have come to exercise a degree of authority over our lives that is unparalleled among modern Western nations." Yet Wood sees this more as a problem of degree than a fundamental one, noting that judicial lawmaking has deep roots in American democracy. He is also skeptical that textualism is a prescription commensurate to the problem and expresses worry that it is as prone to judicial abuse as other methods of interpretation. Ultimately, Wood believes the way to reign in judicial lawmaking is by changing the judicial culture to emphasize technical legalism. The way to do that, he argues, is by remystifying the law.

Laurence Tribe
Tribe's comment is a legal critique of original meaning, which he regards as indeterminate and a potential pretext for the judicial imposition of personal preferences and values. His belief that any original meaning is in some sense "lost...forever" also leads him to view interpretation as a constructive process rather than one of discovery. Additionally, he questions the authoritativeness of both textualism and originalism, arguing that the Constitution is silent as to how it is to be interpreted.

Tribe levels two major substantive criticisms. First, he considers originalism deficient because it is contrary to what he sees as the "transtemporal" nature of the Constitution and allegedly results in internal "incoherence." He argues that the Constitution should be interpreted as a "whole" and "not just a collection of unconnected parts." Consequently, he contends constitutional provisions can "acquire new meanings by the very process of formal amendment to other parts of the Constitution, even when the words contained in the provisions at issue remain unchanged and when only surrounding text has been altered" (e.g., passage of the Fourteenth Amendment in 1868 should be construed as altering the meanings of preceding rights held incorporated against the states through its Due Process Clause).

Tribe's second substantive line of critique against original meaning is that it is too rigid. He thinks the Constitution should be understood to include both "highly specific and concrete" rules, often meant to preserve then-present practices, and "statements of aspiration," meant less to codify particular rights than to announce binding principles. He views the later category as evolutionary in nature, "capable of yielding new and unanticipated implications as future generations come better to understand the deepest meaning and structure of those principles[.]" Tribe thus envisions a model where the concrete rules create a "certain core of rights and freedoms" to be preserved "inviolate," while the statements of aspiration establish a "periphery" within which an expansion of those rights can occur over time. He uses the example of the First Amendment, which he regards as stating a principle against content-based censorship and a mandate of government neutrality with respect to religion rather than a codification of the rights enjoyed by Englishmen as of 1791, the year of its ratification.

Despite his criticism of both Scalia's and Dworkin's original meaning approaches as "misguided," Tribe admits he has "no genuine 'theory' of [his] own...defining precisely how the task of textual interpretation should proceed." Nevertheless, he adopts several positions typically indicative of the living Constitution school of interpretation, most notably, the propositions that "one must of necessity look outside the Constitution itself" in determining what "counts as 'the Constitution'" and that the precise meaning of constitutional provisions can change over time.

Throughout his comment, Tribe also offers several personal criticisms of Scalia. One such criticism is that Scalia is not always faithful to his textualist philosophy. Tribe considers Scalia's argument that capital punishment is expressly contemplated by the Due Process Clauses of the Fifth and Fourteenth Amendments, and the Grand Jury Clause of the Fifth Amendment, to be reliant on original intent rather than textual meaning. He also views Scalia's adherence to stare decisis as an implicit acceptance of the evolving constitutional principles he has denounced and as a contradiction of his professed originalism.

Mary Ann Glendon
Glendon agrees both that the state of statutory and constitutional interpretation in the United States is deplorable and that the cause of the problem is the "use of common-law habits to interpret enacted law." She views these habits as "good ones" that just happen to be "ill-adapted to statutory and constitutional interpretation.", Undertaking a comparative analysis of the common law and civil law systems, she concludes that civil code-based techniques give civil lawyers an advantage in interpreting laws, as the emphasis on grammatical and systemical (structural) interpretation has helped foster a legal culture in which there is a consensus that judges, lawyers, and scholars have roles and responsibilities to which subjective interests and biases must be subordinated.

undertakes a comparative analysis of the common law and civil law systems. She concludes that civil code-based techniques give civil lawyers an advantage in interpreting statutes and constitutions, as the emphasis on grammatical and systemical (structural) interpretation has fostered a legal culture in which it is recognized.

Glendon not only agrees with Scalia about the deplorable state of constitutional interpretation in the United States, she thinks it might be even worse than he suggests, perceiving most Supreme Court rulings to be the product of majority vote rather than "reasoned elaboration of principle." She also agrees that the source of this problem is the use of common-law habits to interpret enacted law." She regards those common law habits as "good ones" that just happen to be "ill-adapted to statutory and constitutional interpretation."

Like Scalia, Glendon is critical of the law schools, only she focuses her concern on the trend since the 1960s for the typical constitutional law course to de-emphasize important constitutional principles like federalism and separation of powers and instead focus heavily on individual rights. This, she says, encourages students to view the document as "the professor's prized collection of fragments" rather than structurally. (111)

Ultimately, she is unconvinced that an emphasis on textualism, structuralism, and originalism alone can diminish the chaos in the field of constitutional interpretation, as those who have abandoned principled judging and objective scholarship will simply deploy those methodologies selectively to achieve their ends. (112) Therefore, she argues, what is needed is a shared legal culture, like exists in civil law countries, where there is a consensus that lawyers, judges, and scholars have roles and responsibilities to which subjective interests and biases must be subordinated.(112)

Ronald Dworkin
Dworkin accuses Scalia of a lack of fidelity to the text, arguing that the First, Eighth, and Fourteenth Amendments are properly understood as statements of principle.