Sadly, Princeton students missed a wonderful opportunity for intellectual enrichment last year. Unbeknownst to most of us, the Honorable Antonin Scalia, Associate Justice of the United States Supreme Court, appeared on campus in response to an invitation from the University Center for Human Values. Scalia’s address, along with commentary on it by a four-member distinguished panel and a response by the Justice, was published as a book entitled A Matter of Interpretation (Princeton University Press, hardcover, 159 pp.). The book is available at the University Store, and I highly recommend it to all who possess an interest in legal and constitutional interpretation. The technical level of the book is quite manageable for anyone who has any experience with the topic, and the Justice’s style is witty and straightforward.

The quote that appears on the back of the dust jacket of A Matter of Interpretation suggests that the book is a treatise on constitutional interpretation. This is misleading. Justice Scalia’s book is not an extensive work of theory: His essay runs only forty-five pages, and of these, the first thirty-four deal not with the Constitution but with statutes. This is not as odd as it may seem, however, since Justice Scalia sees many similarities between constitutional interpretation and statutory interpretation, and many of the vices which prominent critics see only in the former, he finds creeping into the latter as well. Justice Scalia begins by reviewing the common-law practices of adjudication taught in American law schools today. Scalia notes in passing the "uncomfortable relationship of common-law lawmaking to democracy," suggesting that judiciary-made law is compatible with neither the separation of powers nor the fundamental concept of government by the consent of the governed. But this is not the main thrust of his argument. Rather, he argues:

As opposed to the exhilarating job of the common-law judge, statutory interpretation is a neglected science:

Justice Scalia laments this deficiency, attributing it to uncertainty about the basic question, "What are we looking for when we construe a statute?" He has his own answer as well as criticism for what he sees as the nebulous answers of others. Scalia makes an important distinction that explains much of his later criticism of the use of legislative history in modern courts and pigeonholes him within the broad school of "originalist" interpreters of statutory (and constitutional) interpreters. When construing a law, Justice Scalia seeks not the "subjective" intent of the legislature, but rather their "objective" intent -- "the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris." In making this distinction, Scalia echoes other prominent members of the "originalist" school. Scalia, however, attacks proponents of "legislative intent" (by whom, we gather, he means a great number of the judges currently on the bench) with vigor. Basing interpretation on "intent" is not merely misguided, it is "tyrannical," for it threatens the American ideal of "a government of laws, not of men." Moreover, "legislative intent," far from being an objective standard to which judges must conform, is in fact a amorphous jumble of evidence from which a judge can produce his own desired interpretation of the law in question.

Justice Scalia calls his own interpretive philosophy "textualism," and distinguishes this term from the popular term "strict constructionism." He writes: "A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." Scalia cites an example of an unreasonably strict construction in Smith v. United States (1993), a recent case from which he dissented. "But," Scalia says, "while the good textualist is not a literalist, neither is he a nihilist. Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible." As an example of unreasonably loose construction, Scalia cites the mass of cases, beginning with Dred Scott v. Sanford, in which the Supreme Court has defended substantive liberties not mentioned within the text of the Constitution’s Due Process Clauses of the Fifth and Fourteenth Amendments.

So what is a "reasonable interpretation" of a statutory or Constitutional provision? This, of course, is the question everyone would like to answer. Scalia does not spend most of his book praising or condemning particular interpretations of statutes or Constitutional provisions, but rather attempts to explain how a judge should — and should not — look for the right meaning of the provision in question. Important to Scalia are the "canons of construction," traditional rules of textual interpretation, expressed in Latin, which have come under attack in recent years. Scalia defends the canons as sound and commonsensical, but questions the validity of "certain presumptions and rules of construction that load the dice for or against a particular result" which have become entrenched in Supreme Court precedents. Scalia says that rules like "statutes in derogation of the common law are to be narrowly construed" act as an arbitrary "thumb on the scale"; he also questions where the courts get the authority to go beyond the text to impose them.

Scalia’s most diligently pursued point, though, is one which it is somewhat surprising to see a judge who calls himself an "originalist" make, at least until one remembers the distinctions Scalia draws between the "intent" of a law and its "meaning." Scalia rejects the use of legislative history — floor debates, committee reports, and committee testimony preceding the enactment of a piece of legislation — as a tool for interpreting laws. American courts have traditionally ignored legislative history, Scalia reminds us with a quote from a nineteenth-century opinion by Chief Justice Roger Taney:

Ironically, says Justice Scalia, the use of legislative history arose as a backlash to freewheeling use of "legislative intent" as a cover for novel (mis)interpretations of laws from the bench. By attempting to ascertain what the legislature actually did intend, lawyers hoped to preclude the falsification of "intent" by judges. Now, however, says Scalia, the use of legislative history has grown so widespread that the old joke, "One should consult the text of the statute only when the legislative history is ambiguous" is no longer funny; one brief he read began its argument with a discussion of legislative history and then continued: "Unfortunately, the legislative debates are not helpful. Therefore, we turn to the other guidepost in this difficult area, statutory language."

Scalia rejects legislative history because he does not feel it helps to resolve ambiguities in the law. "On balance, [legislative history] has facilitated rather than deterred decisions that are based upon the courts’ policy preferences, rather than neutral principles of law." Almost any judge can find something in the legislative history to support the interpretation he personally wants to give to a law. "As Judge Harold Leventhal used to say, the trick is to look over the heads of the crowd and pick out your friends." Moreover, Scalia says, there are no rules for the use of legislative history: When is it important, and how much weight does it have? Scalia even calls into doubt whether or not legislative history means much. To illustrate this point, he quotes the transcript of a Senate floor debate on a tax bill, in which Senator Bob Dole, Chairman of the Senate Committee on Finance, after saying he would "certainly hope" that the committee report on the bill would be an interpretive guide for the courts, admits he cannot identify the author of that report and has not read it himself, and that the committee did not actually vote on the report.

Following this commentary on statutory interpretation, Scalia turns to the Constitution. That he should leave this document to be treated briefly at the end of his essay is not surprising, he says, since the same principles that apply to interpreting statutes also apply to interpreting the Constitution. The only difference is in the nature of the text to be interpreted:

As is his practice in statutory interpretation, Scalia rejects the "intent" of the Framers as a criterion for interpreting the Constitution; he says he looks to the Federalist Papers and other documents of the Founding only for evidence of the original meaning given to the Constitution. For that reason, he also gives the records left by men who were not at the Constitutional Convention, like Jefferson and Jay, equal weight with the writings of those who were, like Madison and Hamilton.

"But the Great Divide with regard to constitutional interpretation," says Scalia, "is not that between Framers’ intent and objective meaning, but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning." He notes, with a twist of irony, that "most of those who insist that the drafter’s intent gives meaning to a statute reject the drafter’s intent as the criterion for interpretation of the Constitution." Scalia rejects it for both. For Scalia, the great evil of modern constitutional interpretation is the idea of a "Living Constitution," the meaning of which "grows and changes from age to age, in order to meet the needs of a changing society."

Scalia laments the fact that law students learn Constitutional law almost exclusively by studying precedents, regardless of the degree to which those precedents have got away from the original meaning of the Constitutional provisions they interpret. "Worse still, however, it is known and understood that if that logic [of the precedents] fails to produce what in the view of the current Supreme Court is the desirable result for the case at hand, then, like good common-law judges, the Court will distinguish its precedents, or narrow them, or if all else fails overrule them, in order that the Constitution might mean what it ought to mean."

Finally, Scalia attacks the strongest claims the Living Constitutionalists make to justify their methods. He questions the fundamental notion of progress that underlies the Living Constitution’s rationale for discarding the old in favor of the new: "A society that adopts a bill of rights is skeptical that ‘evolving standards of decency’ always ‘mark progress’ and that societies always ‘mature,’ as opposed to rot." Though Living Constitutionalists often claim that an evolving Constitution gives government more flexibility to deal with situations unforeseen by the Framers, Scalia reminds us that much of this evolution, particularly in the past thirty-five years, has reduced the options open to government action. He gives seven examples of this trend, ranging from the requirement that evidence obtained by unlawful searches be excluded from state criminal trials to the recent ban on prayer at public school graduations. Despite this strong trend to reduce the options available to the people and their representatives, a few cases do exist in which flexibility has increased. However, "those exceptions serve only to refute another argument of the proponents of an evolving Constitution, that evolution will always be in the direction of greater personal liberty." As examples of the erosion of constitutionally-protected liberties, Scalia cites the gutting of the provision in Article I, Section 10, prohibiting impairment of the obligation of contracts, an exemption to the Sixth Amendment requirement that the accused be able to confront witnesses against him in child-abuse cases, and the potential he sees that the Court will one day hold that the Second Amendment does not, in fact, guarantee the individual right to bear arms. "We may like the abridgement of property rights and like the elimination of the right to bear arms; but let us not pretend that these are not reductions of rights."

In conclusion, Scalia comments on the utter subjectivity of Living Constitutionalism as compared to the relative objectivity of originalism. "Perhaps the most glaring defect of Living Constitutionalism, next t its incompatibility with the whole antievolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution." Sensibly, Scalia admits that his own methods, too, are less than perfect:

Scalia concludes by warning us that a Living Constitution is ultimately self-defeating:

Not surprisingly, Justice Scalia’s lecture elicited a considerable response from both legal and political commentators. In addition to Scalia's essay, A Matter of Interpretation contains responses from Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon, and Ronald Dworkin, and a reply by the Justice himself to these comments. Beyond this, the academic and political communities took ample note of the book. A full treatment of these responses would be another book in itself; I shall contain myself here to reviewing the comments of just one of them, "Faith in Texts — Justice Scalia's Interpretation of Statutes and the Constitution: Apostasy For the Rest of Us?" by William Funk in the Administrative Law Review. As Mr. Funk notes, Justice Scalia himself once taught administrative law; despite this, however, the two men take drastically different stands on nearly every issue raised in A Matter of Interpretation.

Mr. Funk begins his review by taking due note of the fact that Scalia’s essay deals with interpreting both statutes and the Constitution. "To Justice Scalia, there is nothing odd here, because the Constitution and statutes are both legal texts. Because his interpretive theory is grounded in the notion of textual interpretation, he believes that the same principles of interpretation apply to both texts." Mr. Funk proceeds with an objective and accurate summary of Scalia’s major points, noting the Justice’s attitude towards common-law judging, his belief that legislators, not judges, should make laws, his defense of the canons of construction, his fervent opposition to the use of legislative history, and his rejection of Living Constitutionalism. Mr. Funk also summarizes the responses to Scalia’s essay, and Scalia’s reply to these. Then, he gives his own evaluation of the book.

Mr. Funk first disagrees with Justice Scalia’s rejection of legislative history. He believes that it can be helpful to judges:

Funk notes that judges differ over whether or not particular statutes are ambiguous and thus call for a consultation of the legislative history. A judge who consults legislative history may honestly find the statute ambiguous, and not just be looking for an excuse to impose his own personal interpretation of it. "[E]ven such manufactured statements [as legislative history] may be better guides to making [a] decision than the judge’s personal views of what the law should be." Moreover, Funk reminds us that a judge who does want to misinterpret a statute will do so, with or without legislative history.

Though Funk adopts a more reasonable stance in resisting Scalia’s extreme hostility to legislative history, he errs in ignoring the relevance of many sources other than legislative history to statutory interpretation:

Of course, there are numerous sources besides legislative history that give meaning to laws. The extensive use of legislative history, as Scalia notes, has only become common in recent years; were there no other sources for interpreting laws, objective interpretation would have been an impossibility until recently; Scalia would have no ideal on which to base his interpretation; and the history of objective jurisprudence in our republic would be a sham.

Ultimately, Mr. Funk’s disagreement with Justice Scalia stems from his ties to the precedent-based, indeterminate form of judging common to most modern courts. Funk and Scalia disagree as to the existence and extent of judicial usurpation of power:

To adjudicate the disagreement over the extent of the problem, we would have to rely on empirical evidence. How often do legislatures have to correct judicial misinterpretations of their laws? Of course, some misinterpretations doubtless go uncorrected, because political priorities have changed and the legislature does not care enough to correct them, but if we knew how frequently legislatures did take such action, we could begin to see the extent of the problem. As to the existence of the problem, however, Funk himself makes a strong argument (perhaps without realizing it) about why we have every reason to fear willful misinterpretations from the bench:

Funk here embraces the political aspect of judging; his call for judges to play an "active role in the formation of the law" seems to invite violation of the separation of powers, and is out of sync with the role the Founders envisioned for the judiciary. Funk’s response to abuses by judges is also unrealistic. Judges have life tenure precisely to make them immune to such criticism. As Robert Bork has noted, they do not necessarily respond to the same cultural and political stimuli that the rest of us do. But even if judges were susceptible to political and media pressure, what would that accomplish but Scalia’s scenario of a Bill of Rights that reflected nothing more than the whim of the current majority? If judges cannot evaluate laws objectively, can we expect politicians and the media to do so?

Mr. Funk disagrees with Justice Scalia’s rejection of the Living Constitution; his criticism of Scalia’s thought in this area follows that of Laurence Tribe. Once again, however, the difference boils down to the difference in approaches between the textualist/originalist and one who writes from the modern [precedent-based] position:

In the discussion following this quote, Funk accurately discerns a problem for Justice Scalia — the problem of stare decisis. Even the most die-hard originalists concede that some decisions, though incompatible with the original interpretation of the Constitution, simply cannot be overruled in any real-world scenario; they have become too deeply imbedded in the institutions of the Republic. Whether or not we can find a Constitutional clause justifying the Social Security system, any judge who tried to rule it unconstitutional would find himself ignored, if not impeached. Funk is on target when he says "it is.... critical for an originalist to develop a theory by which stare decisis can be mediated in a principled fashion by original meaning." Many originalists have recognized this problem and attempted to elucidate such a theory. Certainly, no originalist judge can avoid facing the question.

But in a larger sense, Funk misses the mark in his criticism of originalists’ handling of stare decisis:

Once again, Funk ignores the many sources for the objective meaning of laws and constitutional provisions. By his own earlier quote, he seems to acknowledge the legitimacy of a Constitution consisting not of text, but of Supreme Court precedents. This is exactly what Scalia warns against in his deprecation of common-law judging. Under such a system, our Republic is under the rule of men, not the rule of law.