Don Franzen Interviews Justice Scalia on Reading Law

• October 24, 2012 • 11:17 am

The Los Angeles Review of Books features Don Franzen’s extensive interview of Justice Scalia on his new book, Reading Law: The Interpretation of Legal Texts. The interview begins:

FRANZEN: Your Honor, there are already so many treatises written on interpreting text and canons of interpretation, why did you and your co-writer Professor Garner feel that it was time to write this book on “reading law”?

SCALIA: Oh, I don’t think there are that many treatises. I believe that the last treatise that really went through the canons systematically is a hundred years old. The canons have simply been disregarded in recent years. Indeed, they’ve been run down by the academy. So, that’s why we thought it was necessary to teach textualists — those who want to be textualists — how to do textualism. You can’t do it without knowing what are the clues to the meaning of a text.

FRANZEN: I’ve had at least one appellate case that turned on a textual issue — whether or not a particular canon applied. It does seem the treatment of the canons in the cases is sort of haphazard.

SCALIA: They are simply not taught systematically in the law schools, and you’re quite right to the extent that students learn them they learn them episodically — in this case, that case and so forth. And they ought to be taught systematically, I think.

FRANZEN: Should that be a class in law school?

SCALIA: I think there should certainly be a course on statutory interpretation, and more and more law schools have begun to have such courses. But none of them, as far as I know, go systematically through the canons, because there’s no text that has them.

FRANZEN: You and Professor Garner of course are both advocates of “textualism,” the idea that meaning is to be found in the governing text, and also for “originalism,” that you are looking for the “meaning that the text has borne from its inception” — here, I’m quoting from the book. And of course you reject judicial speculation about either what the text means from content outside of the text or the “desirability of the consequences of the reading” — that’s also from your introduction. Text of course governs, but what would you say to the argument that the ability to rely on the original meaning weakens over time? Is there a difference between applying textualism to a contract written in 2008 versus a document written in 1787?

SCALIA: No, it seems to me that the parties agreed to what they agreed to, and I don’t know why it would be fair to give one side or the other a change in the obligations simply because of the passage of time. They said what they said, and they agreed to what they agreed to. I don’t see how the antiquity of the text has any bearing on whether its proper to give it the meaning that the parties that drafted it — if it’s a bilateral contract, or the public that received it, if it’s a statute or an ordinance — understood it to mean.

FRANZEN: Some would be surprised to see that you actually argue against strict construction. In fact, you include strict construction in your list of thirteen fallacies. Most people think textualism, originalism, and strict construction are sort of a trinity.

SCALIA: I think strict construction gives a bad name to textualism. My approach is to give the text a reasonable meaning that it bore when it was adopted. For instance, if you interpret strictly the First Amendment, it would be the case that Congress could censor handwritten letters, because, strictly, it covers only freedom of speech and of the press. A handwritten letter is neither speech nor press. Come on, that’s absurd, that’s not the meaning of the First Amendment. The First Amendment reasonably understood is a guarantee of freedom of expression, whether handwritten or oral, or semaphore or burning a flag.

Stanley Fish—A Generation Behind on Textualism

• July 19, 2012 • 4:28 pm

In a recent article for the New York Times, Stanley Fish critiques the defense of textualism offered by Justice Scalia and Bryan Garner in their important new book, Reading Law. Despite his qualms about its central position, Fish has high praise for the book, which he calls entertaining and “wonderful.” Along the way, he also dispatches Living Constitutionalism as “a form of political gerrymandering rather than as a form of interpretation.”

In this post, I’d like to respond to Fish’s critique. In brief, Fish articulates two lines of attack: 1) Statutory meaning is not “‘in the text’ in the sense Scalia and Garner insist on,” and 2) All interpretation “begins and ends” with “the assumption or specification of an intention without which there would be no text . . . .” Both arguments draw on Fish’s influential body of scholarship dating back to the 1970s; both arguments show their age. The first argument has teeth only against an archaic version of statutory formalism that has been roundly rejected by modern textualists; the second has little relevance to the “second generation” of textualism that has emerged over the last decade.

Fish’s first argument rightly emphasizes the importance of context in the interpretation of texts. This line of attack harkens back to a snarky little debate he had with Ronald Dworkin in the 1980s over the “objectivity” of interpretation. The centerpiece of the argument is Fish’s discussion of the ambiguity of the word “draft.” As he notes, the sentence “let’s avoid the draft” is ambiguous between several meanings, such as “let’s get out of military service” or (spoken by a general manager of a professional sports team) “let’s trust in free agency.” Moreover, Fish insists that “the dream of adding enough words to a text so that its meaning is clear and indisputable cannot be realized,” noting that the expanded sentence “let’s avoid the draft and go to Canada” is, though more prolix, still susceptible to both meanings. Fish concludes that meaning just isn’t “in the text” in any deep sense.

Of course, Fish has rigged the example here. “Let’s avoid the draft and go to Canada” may not resolve the ambiguity, but how about “let’s avoid the military draft.” Indeed, it’s hard to state the argument without falsifying it — since to get the point through, Fish has to communicate to his readers both alternative meanings that the ambiguous sentence might take, and he has to communicate these meanings by means of a text! Nonetheless, Fish needn’t have cheapened his argument by relying on a jiggered example. Ambiguity (multiple meanings of the word “draft”) will often be resolved by a sentence’s syntax or the meaning of other words in the sentence, but not always — and occasionally, context will create ambiguity where none otherwise appears. Moreover, there are plenty of other ways in which resorting to context is indispensable to textual interpretation, and textualists are happy to concede the point. (None other than Justice Scalia once wrote that “In textual interpretation, context is everything.”) (more…)