Is a Taco a Sandwich?: Interpreting the Law

By Stephen RohdeOctober 1, 2012

    Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner. Thompson/West. 567 pages.

    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 legislature must have intended." But Scalia and Garner argue that "it is precisely because people differ over what is sensible and what is desirable that we elect those who will write our laws — and expect courts to observe what has been written."

    Given how Scalia and Garner frame the debate and build their seemingly irrefutable case in favor of textualism, who could disagree? The sworn duty of a judge when interpreting legislation or the Constitution is to focus on the text, without sitting as a Super-Legislator, deciding what is “right” or “wrong,” let alone imposing their own personal, moral, political, economic or socials views.

    But a closer examination of the authors' explanation of textualism reveals a far more complex process. In the first place, Scalia and Garner admit that they apply their own rules of interpretation "unless they seem to us incoherent, not genuinely followed, or in plain violation of our constitutional structure." Apparently there is more for the court to do than simply read the text. Judges have to decide questions of coherence and consistency, identify the constitutional structure at play, and determine whether a rule of interpretation would violate that structure. In fact, despite their claim that text is supreme, Scalia and Garner shudder at being called “strict constructionists,” which they insist “is not a doctrine to be taken seriously.” They reject giving a “hyperliteral meaning” to “each word in the text,” something they condemn as “sterile literalism.” Judges must play a far greater role in the process of interpretation than the authors at first let on. Indeed, judges are now being asked to judge.          

    The authors’ approach to interpreting the Constitution is starkly revealed in the their treatment of Roe v. Wade, which they describe as declaring "unconstitutional state statutes [outlawing abortion] that in no way contradicted any specific provision of the Constitution." But the authors admit that the Bill of Rights sets forth "with some specificity the only 'fundamental law' that courts were authorized to prefer over the text enacted by the people's representatives." And that's precisely what the Supreme Court decided in Roe v. Wade. It interpreted the Ninth Amendment in the Bill of Rights (which provides that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people") to protect a fundamental right of privacy, which, in the author's own words the Court was "authorized to prefer over the text enacted by the people's representatives."

    The authors insist that the Supreme Court "should not give stare decisis effect" or precedential value to Roe v. Wade, and given that their theory elevates text above all else, it is inexplicable that Scalia and Garner would entirely ignore the text of the Ninth Amendment. The absence is conspicuous because the Ninth Amendment is a prime example of how merely reading the text of the Constitution is not "the start and the finish of the interpretive process." To determine which "rights," beyond those enumerated in the Constitution, are "retained by the people," or to interpret the terms "due process," and "equal protection of the laws," judges must do far more than read the text.

    The conservative Scalia and liberal Justice William J. Brennan Jr. both rejected “Original Intent,” the theory that interpretation of the Constitution is limited to the founders'intentions. Given the sparse records of the ratification debates and the ambiguous, conflicting evidence of the founders’ and ratifiers’ intentions, neither justice was willing to be bound by the hopeless search for a single “intention.” But that’s where any agreement between Brennan and Scalia on constitutional interpretation ended. Brennan long maintained that given the very nature of the Constitution as our National Charter, its use of broad language and its lasting role in our democracy, the Constitution needs to be considered a living document, one that should be interpreted to reflect fundamental underlying principles such as "human dignity" as well as the values of a given era that might not be expressly stated in the Constitution. He dismissed attempts to "find legitimacy in fidelity" to the intentions of the framers as "little more than arrogance cloaked as humility." He insisted that "current justices read the Constitution the only way we can: as twentieth-century Americans,” and that "the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs."

    The Preamble to the Constitution declares in magisterial terms that “We the People,” in order “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Surely, judges must interpret all of the text that follows this Preamble consistent with these visionary principles, which inevitably entails the skills of judgment for which judges are appointed or elected.

    While Scalia and Garner may dismiss the views expressed by Brennan (and others), in the end, the author’s goal of installing textualism as the single legitimate theory of interpretation proves unpersuasive. Declared at the outset as the most principled approach to interpreting legal text, Scalia and Garner are forced to concede that there are in fact principles of “fundamental law” expressed in the Constitution which judges must consult in giving meaning to the text. It is doubtful that, by reason of this book or the decisions rendered by Justice Scalia on the bench, textualism will come to rule the day in the ongoing task of interpreting the legal documents which rule our lives.

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    LARB Contributor

    Stephen Rohde is a writer, lecturer, and political activist. For almost 50 years, he practiced civil rights, civil liberties, and intellectual property law. He is a past chair of the ACLU Foundation of Southern California and past National Chair of Bend the Arc, a Jewish Partnership for Justice. He is a founder and current chair of Interfaith Communities United for Justice and Peace, member of the Board of Directors of Death Penalty Focus, and a member of the Black Jewish Justice Alliance. Rohde is the author of American Words of Freedom and Freedom of Assembly (part of the American Rights series), and numerous articles and book reviews on civil liberties and constitutional history for Los Angeles Review of BooksAmerican ProspectLos Angeles Times, Ms. Magazine, Los Angeles Lawyer, Truth Out, LA Progressive, Variety, and other publications. He is also co-author of Foundations of Freedom, published by the Constitutional Rights Foundation. Rohde received Bend the Arc’s “Pursuit of Justice” Award, and his work has been recognized by the ACLU and American Bar Association. Rohde received his BA degree in political science from Northwestern University and his JD degree from Columbia Law School. 


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