December 18, 2012 Articles

Book Reviews: On Interpreting the Law

Your reviewer owes you this disclosure: We do not hate statutes.

By Dennis Owens

Your reviewer owes you this disclosure: We do not hate statutes. In law school, we edited the Notre Dame Journal of Legislation. Our first book reviews were of Reed Dickerson’s The Interpretation and Application of Statutes and William Statsky’s Legislative Analysis, published in the Harvard Journal on Legislation (Vol. 13, No. 4, June 1976). Our first law review article was on how to write a law. You get the idea. We like statutes.

Antonin Scalia and Bryan A. Garner
Reading Law: The Interpretation of Legal Texts
West 2012

This big new book from Justice Scalia and Bryan Garner is, as one would expect, beautifully written and often entertaining. But we recommend it to you because it is of momentous importance. It rationalizes the canons of legislative interpretation for consistency. The authors focus on how the democratic nature of our American experiment in self-government is preserved by interpretations of statutes that adhere to the text of laws enacted by elected representatives of whatever political stripe, rather than the policy preferences of unelected judges Their book is a guide for the judiciary to overcome politics. The widespread use of the principles enunciated anew in this book could indeed help produce a government of laws and not of men.

We were edified by Justice Scalia’s earlier book, A Matter of Interpretation (1998), which we reviewed in this newsletter. In it, he set forth his philosophy of textualism. Non-lawyers sometimes confuse this with the “original intent” school of jurisprudence. Justice Scalia and Mr. Garner contend that the courts should give a statute, regulation, or constitution its plain meaning. They reject the search for intent as not being really possible or practicable.

In a sense, there is nothing new in this book because the canons are nearly as old as the common law itself. Yet, it is all new in that the authors have crafted a highly useful map for judges through the thicket of statutory language. Indeed, many statutes are not well written.

Law schools teach students how to think as a lawyer by having them study common-law case decisions. Law students see how judges fashion rules and remedies that seem just. The law students may come to think, “I would like to do that. I could make the world more just.” The problem is that modern life is more and more regulated by statutes made by democratically elected legislatures and not by rules crafted by appointed common-law judges. In our system of representative government, those statutes must be applied as written and not in a way that may seem more “fair” to unelected judges. The authors champion “fair reading,” not a judge’s personal belief in what is a fair result.

The authors begin with the notion that the canons are not really rules of interpretation in any strict sense but rebuttable presumptions about what a text conveys. They warn that the canons can be abused “as every useful tool can be abused” and that the canons often point in different directions like clues in a mystery story. Their book teaches judges how to understand the canons in order to use them properly. Lawyers can learn how to understand the canons and to wield them in arguments to judges.

In addition to exploring, analyzing, and restating many canons, Justice Scalia and Mr. Garner expose 13 falsities of statutory interpretation. Their book includes a remarkable discussion on the use of dictionaries, a glossary (which may be a very good thing with which to begin your reading of this volume), and a huge bibliography (which could have been bigger, they say).

The authors deal with questions ranging from “What is more important, the spirit of the law or the letter of the law?” to “Is a burrito a sandwich?” They have an answer for both questions and for hundreds in between. This is one of these rare books that are scholarly, yet highly readable; erudite and still amusing. It is rare, also, for a sitting justice to detail his philosophy of judging. The learning is extremely strong, the wit is shining, and the edge is sometimes delightfully sharp. Do not be daunted by the size of the book or the subject. This elegantly written book is worth the read.

We feel compelled to make comment on another review of this book. Judge Richard Posner of the Seventh Circuit has attacked this book in a review in The New Republic. We respect Judge Posner and view him as one of the leading public intellectuals in American law. Judge Posner criticizes the cases that are cited and discussed in illustrating the canons. But, as an objective reader can readily see, the cases were not chosen to establish the authority of the canons. Rather, they provide interesting, often lively, illustrations of the use of the canons that focus on a particular textual point. The canons are by definition accepted until rebutted and need no authority other than their own logic and practical usefulness. Justice Scalia and Mr. Garner are using examples from real cases that demonstrate how a particular canon actually works. Of course, courts consistently consider other factors and use other tools besides the canons. But that does not diminish the canons or make the authors’ choice of illustrative cases erroneous.

Judge Posner gets personal. He claims that the entire enterprise of this book is Justice Scalia’s response to heavy criticism of his opinion in District of Columbia v. Heller, 554 U.S. 570 (2008), the Second Amendment case.

Mr. Garner replies that this charge is a “breathtaking and self-evidently farcical statement.” Mr. Garner says that he did not spend over three years of his life “scouring hundreds of books and a thousand-plus articles to write a full-length treatise, merely to help my coauthor to respond to criticism about one case.”

When Charles Alan Wright first published the one-volume hornbook, Federal Courts, West Publishing sent a copy to every federal judge in the United States. West should do the same now with Justice Scalia and Mr. Garner’s tremendous new treatise.

Lackland H. Bloom Jr.
Methods of Interpretation: How the Supreme Court Reads the Constitution
Oxford University Press 2009

Professor Bloom teaches law at Southern Methodist University. His book is not about how the law should be read in a democracy, but rather how the Constitution of the United States has, in fact, been read over the years by our highest court.

This is an academic study, a portion of which was published first in law review articles. We found it informative, reflecting deep understanding and broad research. It focuses on the Supreme Court and limits its range to cases on constitutional issues. Of course, that is a broad range. The author concludes that most methods of constitutional interpretation have not changed over the past 222 years. These methods antedate the Constitution itself, being rooted in the common law. John Marshall and Joseph Story used these interpretative tools with extraordinary skill.

The author is not an advocate for any political viewpoint or school of jurisprudence. His handling of “original understanding” (versus original intent) is quite clear and helpful. In all, this is a valuable and comprehensive historical study organized in terms of principles of constitutional interpretation. This is an objective, thorough, and important contribution.

Daniel A. Farber and Suzanna Sherry
Judgment Calls: Principle and Politics in Constitutional Law
Oxford University Press 2009

Professor Farber of the University of California (Boalt Hall) and Professor Sherry of Vanderbilt Law School mount a strong defense of judicial review against charges of counter-majoritarian thought. They scrutinize the warring camps of constitutional theory of strict construction versus legal realism. The authors argue that the work of the courts is not political but uniquely legal; that is, it is not politics by other means. Unlike Professor Bloom in his book, these scholars do not review the text of the Constitution. But it is strange that they explain that the absence of textual analysis is because the text of our Constitution “usually does not offer much in the way of either guidance or constraint.” These words would seem to reveal a bias in favor of the cynicism of the politicized legal realists.

The authors have written a number of interesting, thoughtful books on important legal topics. We particularly enjoyed their Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations (University of Chicago Press 2002). They write well, usually succinctly, and they argue with verve and fine logic. We disagree with several of their contentions and a few of their conclusions, but we enjoyed the trip completely.

Keywords: litigation, appellate practice, Scalia, Garner, Bloom, Farber, Sherry, textualism, original intent, legal realism

Dennis Owens practices appellate law in Kansas City, Missouri.


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