Posner, of course, is Judge on the Seventh Circuit Court of Appeals. Scalia Justice on the Supreme Court. Scalia's job is to grade Posner's papers. Posner's avocation is to tweak Scalia's.
The subject here is Scalia's asserted approach to constitutional and statutory interpretation, an approach he sometimes calls "textualism" and other times "originalism" though they're not actually the same thing.* Scalia's been arguing about this for years, of course. And he's now got a new book with Bryan Garner, Reading Law: The Interpretation of Legal Texts where the two of them try to make the case for it as the only proper way for judges to act.
By relying strictly on strict reading of texts according to their original meanings, Scalia and Garner argue, judges are able to put their own prejudices aside. They cannot invent the law or change it, merely apply what was previously created. In that limited way, it's close to the balls and strikes model that John Roberts foolishly endorsed at his confirmation hearings and that all who've come after him (Alito, Kagan, Sotomayor) claim to endorse, though none of those Justices claim to be textualists or originalists. And, indeed, there's virtually nothing in any of their opinions to suggest that any of them think either is a proper model for judging.
In fact, and for all his insistence that it's the only way to go, Scalia occasionally admits that he will abandon the textualist/originalist/whatever approach when he finds the results too repulsive. And he believes in stare decisis, so that he supports in practice constitutional interpretations he rejects in principle if they've been around long enough and if he is not personally uncomfortable with the particulars of the improper reading.
In other words (and again, Scalia admits this from time to time, though in language less stinging and admitting of less hypocrisy than what I'm about to write), his approach is to rigorously adhere to the original text and meaning of a constitutional provision or statute so that his personal and political preferences will have no effect on his decision. Except that when his personal and political preferences conflict strongly with his understanding of the original text and meaning, he goes with preferences.
To do otherwise, actually to judge with integrity, he has not quite said, is to be Clarence Thomas. And unlike Thomas (and this he has said), he's not nuts.
Perhaps he's not.
But as Posner demonstrates with devastating detail and lip-smacking relish in his review of Reading Law (savaging might be a better term than review) in The New Republic, "The Incoherence of Antonin Scalia," and as I said in the first sentence of this post, Scalia's intellectually dishonest. A few (too-lengthy, sorry) snippets.
So, in a preemptive defense against accusations that textual originalism is political, the book gives examples of liberal decisions that Scalia has written or joined, and there are indeed a number of them (not much of a surprise, though, since he must have voted in at least two thousand cases as a justice of the Supreme Court). In United States v. Eichman, for example, he voted to hold a federal statute forbidding the burning of the American flag unconstitutional, and it was certainly a vote against his ideological grain. But it is a curious example for a textual originalist to give. The relevant constitutional provision—“Congress shall make no law abridging ... the freedom of speech”—does not mention non-verbal forms of political protest, and Scalia and Garner insist that legal terms be given their original meaning lest the intent of the legislators or the constitution-makers be subverted by unforeseen linguistic changes. “In their full context,” they assert, “words mean what they conveyed to reasonable people at the time they were written—with the understanding that general terms may embrace later technological innovations.” That approach is inconsistent with interpreting “freedom of speech” to include freedom to burn flags, since the eighteenth-century concept of freedom of speech was much narrower than the modern concept, and burning cloth is not a modern technological innovation. According to William Blackstone, whom Scalia and Garner treat as an authority on American law at the time of the Constitution, freedom of speech forbids censorship in the sense of prohibiting speech in advance, but does not prohibit punishment after the fact of speech determined by a jury to be blasphemous, obscene, or seditious. And so an understanding of free speech that embraces flag burning is exceedingly unoriginalist. It is the product of freewheeling Supreme Court decisions within the last century.He's a hypocrite. He's intellectually dishonest. Fair (or unfair) enough. Posner's is a book review. It's appropriate in context for him to explain that the book's argument is self-refuting and its supporting evidence and examples either don't actually support the argument or make it only if misrepresented. And we know, from elsewhere in his writings (Posner is nothing if not prolific), and from comments in the review, that Posner thinks textual originalism is hopelessly muddled. He writes, accurately,
. . .
Scalia and Garner ridicule a decision by the Supreme Court of Kansas (State ex rel. Miller v. Claiborne)that held that cockfighting did not violate the state’s law against cruelty to animals. They say that the court, in defiance of the dictionary, “perversely held that roosters are not ‘animals.’” When I read this, I found it hard to believe that a court would hold that roosters are not animals, so I looked up the case. I discovered that the court had not held that roosters are not animals. It was then that I started reading the other cases cited by Scalia and Garner.
. . .
A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.
. . .
ANOTHER interpretive principle that Scalia and Garner approve is the presumption against the implied repeal of state statutes by federal statutes. They base this “on an assumption of what Congress, in our federal system, would or should normally desire.” What Congress would desire? What Congress should desire? Is this textualism, too?
Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke “motivated thinking,” the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.
In 1985, speaking at a symposium at Georgetown Law School, Justice Brennan took aim at an earlier, and broader version of what Scalia (and Garner) propose.
There are those who find legitimacy in fidelity to what they call "the intentions of the Framers." In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions. All too often, sources of potential enlightment such as records of the ratification debates provide sparse or ambiguous evidence of the original intention. Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality. Indeed, it is far from clear whose intention is relevant-that of the drafters, the congressional disputants, or the ratifiers in the states?-or even whether the idea of an original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states. And apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive. One cannot help but speculate that the chorus of lamentations calling for interpretation faithful to "original intention"-and proposing nullification of interpretations that fail this quick litmus test-must inevitably come from persons who have no familiarity with the historical record.Scalia's purported insistence on interpreting the Constitution and statutes based exclusively on what the words were understood to mean at the time of ratification or enactment is of course stifling. It is particularly so in constitutional interpretation where he takes as a given that any right not specifically codified does not exist. That would seem pretty clearly to reject the words of the 9th Amendment.
Perhaps most importantly, while proponents of this facile historicism justify it as a depoliticization of the judiciary, the political underpinnings of such a choice should not escape notice. A position that upholds constitutional claims only if they were within the specific contemplation of the Framers in effect establishes a presumption of resolving textual ambiguities against the claim of constitutional right. It is far from clear what justifies such a presumption against claims of right. Nothing intrinsic in the nature of interpretation-if there is such a thing as the "nature" of interpretation- commands such a passive approach to ambiguity. This is a choice no less political than any other; it expresses antipathy to claims of the minority rights against the majority. Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.Scalia has no coherent explanation for why the words of the Ninth Amendment are to be ignored by textual originalists except that they aren't specific enough to be applied.
Dammit Framers, get it right. You left it up to us, and my approach forbids you to have done that.Think that's too harsh? In Troxel v. Granville, the Court held that a Washington State statute that permitted anyone to ask a court for visitation rights to a child, and that the court should grant that request whenever it was in the child's best interest, unconstitutionally interfered with "the fundamental right of parents to make decisions concerning the care, custody, and control of their children."
In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all men . . . are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents' authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.Which pretty much writes the Ninth Amendment out of the Constitution.
Scalia's attack on the straw dog of everyone who doesn't adopt some version of originalism is not without force. The truth is that the Constitution and statutes, in fact, mean whatever five of the nine berobed ones say this week what they mean. That's not because the five got it right but because they get to decide. And then, when the composition of the Court changes, they get to decide something different. That's our system.
And if the nine aren't tethered to something other than their own predilections, prejudices, and policy preferences, then the Constitution and statutes don't mean a thing. They're just placeholders for the whims of the judiciary. But Scalia's response is pure sophistry. The problem isn't that he's intellectually dishonest in his defense or that he's a weak-kneed hypocrite in practice. The problem is that what he proposes to do and claims (mostly) actually to do is impossible and undesirable.
Rigid (some might say mindless) adherence to the text as it was understood by those who adopted/enacted/ratified it requires an historiographic linguistics we do not have. Consider District of Columbia v. Heller where every opinion rests on the language and text and history of the Second Amendment while disagreeing vehemently about what those things say. (And, as Posner points out, Scalia's approach to the Constitution should have, if anything, forced him to switch sides.)
And it rejects wholly consideration of purpose and context. Neither a statute nor the Constitution exists in a vacuum. They had aims and points. They contain ambiguities, intentionally or otherwise, that courts must resolve. Scalia's claimed approach would deny the ability to resolve ambiguities or would result in doing exactly what the approach insists can't properly be done. If the latter, if the judge is to resolve the ambiguity, then the approach is hopelessly bankrupt for application to the real world. If the former, as in Sclaia's approach to the Ninth Amendment, then the approach is inherently contradictory, rigidly adhering to the text while effectively rewriting it.
*To oversimplify significantly, textualists look exclusively to the language of the statute or constitutional provision or whatever; originalists look to the original understanding of it. There is, of course, significant overlap to the point where it can often seem that these are distinctions without a difference.