- ISBN13: 9780691004006
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Product 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 l… More >>
A Matter of Interpretation: Federal Courts and the Law
Tags: Courts, Federal, Interpretation, Matter
#1 by G. McCoy on March 28, 2010 - 1:15 am
A verbose, self-righteous justification of Scalia’s gun-lust-driven obsession with a police state, the elimination of individual rights, protection of the corporate prerogrative to pollute, and the eventual takeover of our government by right-wing religious fanatics. This is a sleight-of-hand job worthy of a clumsy circus magician. He points to the law with one hand while sweeping it out from under us with the other.
Read it and weep.
Rating: 1 / 5
#2 by Anonymous on March 28, 2010 - 3:20 am
Unfortunately, Justice Scalia’s views demonstrate a profound ignorance of any scientific understanding related to his topic.
His all too common scientific blindspot can be assessed by comparing his analysis to works like E. D. Hirsch, Jr.’s (1987), Cultural Literacy, and Tom Tyler et. al.’s (1997), Social Justice in a Diverse Society.
Quite correctly, Scalia identifies his approach as “an art or a game, rather than a science” (p. 8).
By contrast, Hirsch and Tyler et. al. show how reliable data can contribute to our knowledge of important literacy processes like reading, writing, and judging.
Hirsch’s literature review related to “The Discovery of the Schema” (Ch. 2) leads him to conclude that most of the “meaning” from any printed page comes not from the text but from the reader’s own literacy, i.e., prior knowledge, ignorance, and disinformation.
From research in social psychology Tyler et. al. show how relevant social identities shape our judgments of justice and injustice.
In this limited but increasing empirical light, we can understand our legal conflicts much better, e.g., the 1856 Dred Scott decision that denied federal citizenship to African Americans, the belated voting rights of women in 1920, and the Warren Court’s recognition that suspects (like Richard Jewell) need and deserve meaningful constitutional protection.
Contrary to Justice Scalia, the key to understanding these historical and continuing conflicts is not “moral principles” that “are premanent” (p. 146) and tied to any text and its original context.
Rather, congruent with Professor Dworkin’s “semantic intention” (pp. 118-119) and Professor Tribe’s “abstract principles,” the most valid literacy keys are the different ways that we perceive and value or devalue the identities of others.
(This should be quite obvious to anyone who takes the time and trouble to read the Dred Scott “reasoning” & “judgment,” including the two dissenting opinions.)
The fundamental key to proper legal understanding begins with perceiving African Americans, women, children, suspects, and even prisoners as persons.
Then, as the introductory or Identity Clause of the Fourteenth Amendment says, “All persons born or naturalized in the United States” are citizens and, thus, are entitled to the due process of law and its equal protection.
Depersonalization of any of these persons undermines our literacy process, the Constitution, and the democratic morality that can unite as a one nation and People.
Rating: 2 / 5
#3 by Anonymous on March 28, 2010 - 4:56 am
The centerpiece of this excellent book is an essay called “Common Law Courts in a Civil Law System,” where Justice Scalia outlines and defends his theory of statutory and constitutional interpretation. The second part of the book has reactions from three law professors and an historian. Scalia then responds in a (testy) Afterwards that suggests that he doesn’t take criticism well.
Scalia, a judge, believes that judges seek to grab power by covertly making laws. Prior to the 20th century, they made laws by manipulating common law precedents in the guise of “interpretation.” The adoption of the Constitution and the growth of written laws should have ended this chicanery but didn’t — judges used the concept of “legislative intent” to evade the clear meaning of statutes and invented the notion of an “evolving constitution” to rewrite constitutional law as they saw fit.
To combat these evils, Scalia wants judges to decide cases by applying the “original meaning” of a statute or constitutional clause — a strategy he calls “textualism.” He has many intelligent things to say about statutory interpretation. Unfortunately, his theory of constitutional interpretation is a mess. Nothing in the text of the Constitution endorses “textualism” or any other rigid interpretive approach; on the contrary, the document’s many vague, open-ended clauses made it inevitable that courts would create a “common law” of the Constitution. Historical investigations into “original meaning” may not yield certain, non-manipulable results, as shown by the disagreements among historians in this area. Clauses such as the First Amendment may not have had a clear “original meaning” at all.
No one in 2003, not even conservative jurists, really wants the country to be ruled by the “original meaning” of the Constitution. Freezing the Constitution in the understandings of 1791 or 1868 would only lead to permanent divisive pressures to amend the Constitution in ways that would probably horrify conservatives like Scalia. The Justice knows this. He accepts the legitimacy of stare decisis as an exception to textualism, even though it requires judges to uphold “wrong” Constituional decisions. He also knows that courts grappling with novel areas like TV broadcasting will find little guidance in the “original meaning” of the First Amendment: as Scalia concedes, “In such new fields, the Court must follow the trajectory of the First Amendment” — “trajectory” being Scalia’s euphemism for a Constitutional “common law.”
The biggest disappointment is Scalia’s failure to give an historically-informed, “inside” view of how the Supreme Court adjudicates cases, weighs political and legal factors, and adapts the Constitution to changing social circumstances in a way that preserves the Court’s legitimacy. This would have given the reader a basis for deciding whether or not our affairs are sensibly arranged. Instead, Scalia reverts to the cliche that judicial lawmaking is undemocratic. He’s right, it is, big deal. So is the Senate. So is the electoral college. And so are many other exceptions to pure democracy that Americans have put up with over the centuries. The question is not whether a limited judicial role in lawmaking is undemocratic. The question is whether it is bad.
To answer that question, we need to know how institutions function and interact in practice. Scalia fails on this score, reverting to cliches rather than analysis. True, federal judges are unelected — but they are also above the fray of everyday politics, do their business case by case, give reasons for their decisions, and are subject to long-distance political control through the appointments process. Legislators, on the other hand, are indeed elected by the voters — but they are also corruptible, short-sighted, subject to sleazy pressures, and unrepresentative of the electorate (how many black women are in the Congress?). Scalia should have discussed these institutional realities. Instead, he grinds an axe on behalf of a theory of adjudication that has never been followed in practice and never will be — least of all by him.
“A Matter of Interpretation” is brief, thought-provoking, and jargon-free. The subject matter is important. It deserves a rating of five stars. I gave it only four because Scalia himself deserves only three.
Rating: 4 / 5
#4 by Anonymous on March 28, 2010 - 7:13 am
An interesting book in that you hear a variety of approaches on statutory interpretation. However, most of their perspectives are too long-winded and really could be reduced to a couple pages. In the end, basically the people just have to agree to disagree, since they are starting with different premises and assumptions. The historian Gordon Wood’s article is probably the most interesting. Overall, although the book formulates the debate well and makes you think, it is too repetitive.
Rating: 3 / 5
#5 by Ben on March 28, 2010 - 8:50 am
Even after trying to put to one side whatever opinion one has of Justice Scalia as a judge – something that, for example, the WSJ reviewer plainly couldn’t manage, rating or reviewing this book poses (at least) two difficulties:
- the first is that, regardless of the merits – see below – of Justice Scalia’s text, he has nonetheless had the decency (or hubris) to seek and publish critical reviews from Ronald Dworkin and Laurence Tribe, notwithstanding that both could be expected to (and do) reject Scalia’s assertions. This, in itself, redeems the book to some degree – while many, if not all, Scalia fans may skip these sections, it has to be accepted that he has provided a forum for meaningful discussion of his asserted judicial approach.
- the second and less equivocal point is that the text itself is most use as an exercise in legal pathology, on at least two levels. First, and as Tribe and Dworkin demonstrate, Scalia’s originalism is intellectually incoherent and anything but the value-free transparent methodology that he claims it to be. Second, the prominence of Scalia as a Federalist Society icon and, according to President Bush, a model member of the Supreme Court demonstrates the clear conviction that dubious judicial method is irrelevant provided that one agrees with the ideology espoused. This is not to say that Scalia is invariably ideologically motivated – see, for example, his dissent in -Hamdi- but that he is often influenced by ideology yet denies it.
In brief, it’s worth buying for the critique and that’s about it.
Rating: 3 / 5