A Powerful Judicial Elite Determines Our Rights
Princeton University Press • 997 • 159 pages • $19.95
Jürgen Skoppek is a magistrate on Michigan’s Workers’ Compensation Appellate Commission and holds a J.D. from Harvard Law School.
The fate of our liberties no longer rests in the hands of the voting public, elected legislators, or executive-branch officials. Whatever liberties we are permitted to have in the age of Big Government are determined mainly by a small cadre of often-unelected judges. This powerful elite decides what rights our national and state constitutions provide, which laws are enforceable, and the manner in which government authority can be exercised. How these judges go about their business of deciding what the law says is therefore of extraordinary interest, or at least it should be, to anyone interested in preserving individual liberty.
Hence, we should all be grateful for A Matter of Interpretation, the remarkably readable and fascinating new book by Supreme Court Justice Antonin Scalia. Based upon his recent Tanner Lectures at Princeton University, this book provides a lay-reader–friendly glimpse at the complex and arcane world of jurisprudence and the legal art of interpreting statutes and constitutional provisions. In the span of a mere 150 pages, even readers unfamiliar with the twists and turns of the law can gain a better understanding of what motivates the most influential legal scholars currently espousing their views in America.
What makes the book particularly interesting is that it is not a mere recitation of Justice Scalia’s legal philosophy, but also a dialogue with other academics who have insights into the question of legal interpretation, including commentary by Professors Mary Ann Glendon (a specialist in comparative law), Gordon S. Wood (a historian of the American eighteenth century), and Amy Gutmann (a professor of politics at Princeton who provides a stimulating introductory setting for the book). Most noteworthy are the contributions of two of the nation’s foremost adherents to what might be called the Feel-Good School of Jurisprudence (wherein every jurisprudential analysis is carefully designed to justify the particular result that makes the author feel good about his or her liberal preferences on a given legal issue), Professors Laurence Tribe and Ronald Dworkin.
Justice Scalia has become closely associated with, if not the embodiment of, the principles of “originalism” and “textualism,” two quite different methodologies for interpreting the law. What his chief article in the book, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Law,” makes clear is that these methodologies are not an end in themselves, but merely a means to an end. The motivating goal for employment of these methodologies is judicial restraint. In Justice Scalia’s legal universe, the great mortal sin is judicial activism and the aggrandizement of authoritarian power in the hands of a judicial elite. According to him, the problem is the shift from law based upon democratic will and a reliable and steady constitution to law created by all-powerful judges employing their own personal preferences. It is this usurpation of democracy that Justice Scalia wishes to limit by employing his interpretative techniques.
Scalia complains that “So utterly unformed is the American law of statutory interpretation that not only is its methodology unclear, but even its very objective is.” He argues that one of the key reasons for the penchant of judges to take on legislative powers in the act of legal interpretation is the grounding of American law in the common law tradition. The common law is judge-made law, and even as American law in practice began to be reflected primarily in statutes, judges still approached their practice from a common-law orientation. Justice Scalia points out how, to this day, legal education uses the common law as the foundation for turning students into lawyers. The result, he maintains, is that judges wield all too much influence, thereby doing great damage to the idea of democracy.
As a means to limit this activism by judges, Justice Scalia proposes judicial utilization of two principles, textualism and originalism. What are these approaches to legal interpretation? “Textualism” respects the primacy of the text, focusing squarely on the plain meaning of statutory law and constitutional provisions. It requires the use of basic rules of construction, such as “expression of one is exclusion of the other” (Scalia’s example, “If you see a sign that says children under twelve may enter free, you should have no need to ask whether your thirteen-year-old must pay”), or “a word is given meaning by those around it” (for example, “I took the boat out on the bay” gives “bay” a different meaning than “I put the saddle on the bay”). “Originalism,” on the other hand, requires an analysis of a legal text on the basis of its original meaning—how the text was understood at the time of its authorship.
In contrast to these methodologies, which the Justice suggests encourage limits on judicial authority, he presents dark images of the enemy. His bêtes noires include use of the supposed “intent of the Legislature” and apparent “legislative history” to interpret statutes, and the viewing of the U.S. Constitution as a flexible “Living Constitution” constantly changing with the needs and desires of society at any given moment. The danger in these approaches, he argues, is that democracy will be replaced with government by a judicial elite and that, once the public catches on, judges will be chosen purely on the basis of political preference, putting even our most cherished individual rights in danger.
Justice Scalia presents his views with charm and clarity. His adversaries, however, also make some strong points. For instance, Scalia’s approach can lead to contradiction. After all, textualism and originalism are often at odds. The former most often produces very tightly interpreted statutes, but permits constitutional phrases like “due process” and “equal protection” to be given extremely broad meaning. Originalism in many respects requires utilization of the very supposed evils (reference to legislative history and legislator understanding) that the former approach abhors. Justice Scalia’s article spends little time attempting to resolve this contradiction.
Nor is it always clear exactly what the author’s concern is. Is he opposed to an imperial judiciary because it subverts democracy and majority rule? Or is he worried that an imperial judiciary is too ready to succumb to the will of the majority, thereby imperiling basic minority rights? The Justice poses both dangers, at his convenience, even though the two problems are quite incompatible. Justice Scalia advocates judicial restraint, but also seems by implication to be arguing for judicial activism when necessary to strike down legislative efforts that contradict the original understanding of particular constitutional provisions.
Such contradictions have led many champions of individual rights to worry about the true goals of Justice Scalia’s jurisprudence. In deciding cases at the Supreme Court, he seems to use his legal principles fairly consistently to justify implementation of the will of legislative majorities or to preserve traditions against contemporary, often “political correctness”–motivated assault. Frequently, Justice Scalia’s arguments prefer the result that preserves the way things have been done in the past. Of course, preservation of “the way things used to be” may by definition constitute a certain kind of conservatism, but this gives little comfort to civil libertarians.
The failure of Justice Scalia and the commenting scholars to effectively reconcile these contradictions does not in any way diminish the value of the book. The very fact that these questions are raised in the mind of the reader is of great value. A Matter of Interpretation sets the mind aswirl with ideas. It stimulates internal legal and philosophical debate as the reader progresses through its pages. It excites an interest in the law and demonstrates the critical importance of thinking about the role of legal interpretation in the crafting of the way we govern ourselves. It is a book for anyone who cares about the law and its place in our society.
