SHOULD THE TERM "sandwiches" in a commercial lease include "tacos, burritos and quesadillas"? Does the U.S. Constitution include a right of privacy encompassing abortion? From the mundane to the fundamental, every day we ask our courts to interpret legal documents, legislation and the Constitution itself. But how should courts decide what the text of a document means? Are there agreed upon standards that all courts should use in approaching this task?
To address these important issues, Antonin Scalia, senior Associate Justice of the U.S. Supreme Court, and Bryan A. Garner, author of more than 20 books on legal writing, and Editor-in-Chief of Black's Law Dictionary, have written a massive book, part compendium of canons of interpretation, and part polemic advocating one particular theory of interpretation, which they call "textualism."
In the opening chapters of Reading Law and a concluding section entitled "Thirteen Falsities Exposed," Scalia and Garner bring their considerable rhetorical skills to the task of condemning and ridiculing any theory of interpretation except their own. In between, the authors set forth 70 canons of textualist interpretation to aid lawyers and law students to interpret legal texts, including fundamental principles, semantic canons, syntactic canons, contextual canons, expected-meaning canons, government-structuring canons, private right canons, stabilizing canons, and falsities exposed.
Though their work looks like a legal textbook, Scalia and Garner are on a political mission. "The descent into social rancor over judicial decisions is largely traceable to nontextual means of interpretation, which erode society's confidence in a rule of law that evidently has no agreed-on meaning," the authors state. "Our legal system must regain a mooring that it has lost: a generally agreed-on approach to the interpretation of legal texts."
In a Foreword, Frank H. Easterbrook, Chief Judge of the Seventh Circuit Court of Appeal, explains that as textualists, Scalia and Garner believe that "statutory language is both the start and the finish of the interpretive process." The court's job "is to carry out the legislative project, not to change it in conformity with the judge's view of sound policy." The authors contend that judges "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' extratextually derived purposes and the desirability of the fair reading's anticipated consequences."
Embedded in that sentence are two of the alternative theories of interpretation which Scalia and Garner categorically reject. The authors argue that "where purpose is king, the text is not — so the purposivist goes around or behind the words of the controlling text to achieve what he believes to be the provision’s purpose."
But having distanced themselves from purposivism, Scalia and Garner are quick to say that textualists do not ignore purpose. “Of course, words are given meaning by context, and context includes the purpose of the text.” Indeed, purpose “is the context that helps to give words meaning — that might cause draft to mean a bank note rather than a breeze.”
Meanwhile, according to the authors, the equally misguided "consequentialists" urge "that statutes should be construed to produce sensible, desirable results, since that is surely what the legislatur...