Part 11 of the series, "The Structure of Lies in Conservative Jurisprudence"
“Heller probably is the best-known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism. It is unconvincing.—Richard Posner
In the previous post, I presented a broad-brush critique of Scalia's orginalism based on a brief post0 from Scott Lemieux. I now want to go into considerably more detail, based on “The Incoherence of Antonin Scalia”, Richard Posner's review of Antonin Scalia's Reading Law: The Interpretation of Legal Texts co-authored with Bryan Garner. Because of length, I've split this into two parts. The review functions on multiple levels, making several significant points at different levels of generallity, but the theme of Scalia's incoherence—and hence, lawlessness—is woven throughout via various different threads:
(1) Judges like to portray themselves in a passive, constrained manner, even if they are not so philosophically inclined, for a variety of different reasons. Here's Posner:
Judges tend to deny the creative—the legislative—dimension of judging, important as it is in our system, because they do not want to give the impression that they are competing with legislators, or engaged in anything but the politically unthreatening activity of objective, literal-minded interpretation, using arcane tools of legal analysis. The fact that loose constructionists sometimes publicly endorse textualism is evidence only that judges are, for strategic reasons, often not candid.
(2) Scalia's strict textual originalism makes no sense under even modest scrutiny—one source of incoherence—and he actually abandons it, but without fully admitting he's doing so—a second source of incoherence. Here is how Posner introduces these twin points, which he elaborates further as he goes on:
The passive view of the judicial role is aggressively defended in a new book by Justice Antonin Scalia and the legal lexicographer Bryan Garner. They advocate what is best described as textual originalism, because they want judges to “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.” This austere interpretive method leads to a heavy emphasis on dictionary meanings, in disregard of a wise warning issued by Judge Frank Easterbrook, who though himself a self-declared textualist advises that “the choice among meanings [of words in statutes] must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.”
Scalia and Garner reject (before they later accept) Easterbrook’s warning. Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.
(3) Scalia claims that textual orginalism provides the one and only “objective” judicial approach to interpreting the law. Posner refers to “their statement that textual originalism is the only 'objective standard of interpretation even competing for acceptance'”, but goes on to point out that their argument poses its alternative as “non-originalism” which is “just a bogeyman”, not something that actually exists. What's more, Scalia himself abandons textual originalism by embracing a wide array of other judicial guiding principles. Here's Posner:
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.
If this sounds familiar, it should: it echos the problem that Dworkin identified with Roberts' lack of a clear commitment to a guiding principle. Scalia, of course, claims to have a guiding principle—textual originalism—but if so, then what's with all these other interpretive principles? Posner has little trouble pointing out inconsistencies that arise. One involves Scalia's grappling with the meaning of “animals” in “a sign at the entrance to a butcher shop reading ‘No dogs or other animals’”. After poking Scalia's approach full of holes, Posner concludes, “It is the purpose of the sign, not anything in the sign, that tells you what meaning to attach to the word 'animals' among its possible meanings.”
Although Posner does not say so, the problem with textual originalism is not simply that it's wrong, or that Scalia doesn't actually adhere to it, but also that it's so simplistic and impoverished that it can't possibly work coherently with a diversity of interpretive principles—and working with a diversity of interpretive principles is exactly how Scalia and all other judges actually do operate. The only question is whether they manage to pull it off coherently or not.
Recalling Dworkin's own constitutional vision or Steven Breyer's, we have examples that are capable of providing true guidance in choosing which of many interpretive principles make sense to use in a given situation. But that's precisely because such visions are not themselves interpretive principles as such. They provide interpretive guidance, of course, but it's guidance for interpreting constitutional purpose, not specific bits of text. They function at a higher level of abstraction. That's what an interpretive vision must do in order to be able to lend coherence to interpretive practice when there are so many text-level (or near-text-level) principles to choose from.
(4) Scalia's claim that textual originalism is ideologically neutral may sound plausible in the abstract, but neglects how things actually work in practice. Here's how Posner sets up the argument:
One senses a certain defensiveness in Justice Scalia’s advocacy of a textualism so rigid as to make the ambulance driver a lawbreaker. He is one of the most politically conservative Supreme Court justices of the modern era and the intellectual leader of the conservative justices on the Supreme Court. Yet the book claims that his judicial votes are generated by an “objective” interpretive methodology, and that, since it is objective, ideology plays no role. It is true, as Scalia and Garner say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative.
And here's how Posner points out textualism's conservative bias:
A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text. Ignoring the limitations of foresight, and also the fact that a statute is a collective product that often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers, the textual originalist demands that the legislature think through myriad hypothetical scenarios and provide for all of them explicitly rather than rely on courts to be sensible. In this way, textualism hobbles legislation—and thereby tilts toward “small government” and away from “big government,” which in modern America is a conservative preference.
Of course, textualism is far more conservative than that. By ignoring other interpretive approaches—such as those cited by Blackstone below—textualism anchors the meaning of laws to the prejudices and limitations of understanding which ruled us in the past insofar as they limited the meaning of words. Arguments about universal rights, for example, were widely made in the 17th and 18th century, with only a very few people making the obvious observation that truly universal rights must be had by all—including by women and by those of African descent. When most people said “universal” in those days, they didn't really mean “universal”. And textual originalism would have us continue that damnable lie. It's a profoundly conservative approach to interpreting the law.
(5) Scalia's own attempt to describe how his theory produces a liberal result, in the case of flag-burning, only yields yet another vein of incoherence, as the example actually contradicts his interpretive theory:
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.... 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.... 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.
But it gets even worse for Scalia:
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.
Shorter Posner: Scalia has no idea what he's doing.
Perhaps the problem is that textual originalism should not be used to interpret textual orginalism? Just a thought.
To be continued in Part 2.