OCTOBER 1, 2012
ANTONIN SCALIA IS THE SENIOR Associate Justice of the United States Supreme Court — he was appointed in 1986 by President Ronald Reagan. Considered by many to be the intellectual center of the Supreme Court’s right wing, Justice Scalia is known for his articulate, outspoken, and unapologetic views on the Constitution and Bill of Rights. Together with law professor and author Bryan A. Garner, he recently authored Reading Law, a treatise on his views on legal interpretation, published by Thompson/West (A review of Reading Law appears today in LARB).
Justice Scalia agreed to be interviewed for the Los Angeles Review of Books by its legal affairs editor Don Franzen, but with a few conditions. The interview had to be directly related to the book. Justice Scalia would not discuss cases that have been recently decided by the Court, cases that are pending before the Court, or topics that are either pending or are likely to come before the Court.
Mr. Franzen met with Justice Scalia in Los Angeles after the Justice had given a speech to a local bar organization. Wearing a dark suit, and with several deputy U.S. marshals in attendance, the 76-year-old jurist spoke with his accustomed clarity in an open and often affable manner about his views on the meaning of the constitution and the interpretation of laws.
FRANZEN: Your Honor, there are already so many treatises written on interpreting text and canons of interpretation, why did you and your co-writer Professor Garner feel that it was time to write this book on “reading law”?
SCALIA: Oh, I don’t think there are that many treatises. I believe that the last treatise that really went through the canons systematically is a hundred years old. The canons have simply been disregarded in recent years. Indeed, they’ve been run down by the academy. So, that’s why we thought it was necessary to teach textualists — those who want to be textualists — how to do textualism. You can’t do it without knowing what are the clues to the meaning of a text.
FRANZEN: I’ve had at least one appellate case that turned on a textual issue — whether or not a particular canon applied. It does seem the treatment of the canons in the cases is sort of haphazard.
SCALIA: They are simply not taught systematically in the law schools, and you’re quite right to the extent that students learn them they learn them episodically — in this case, that case and so forth. And they ought to be taught systematically, I think.
FRANZEN: Should that be a class in law school?
SCALIA: I think there should certainly be a course on statutory interpretation, and more and more law schools have begun to have such courses. But none of them, as far as I know, go systematically through the canons, because there’s no text that has them.
FRANZEN: You and Professor Garner of course are both advocates of “textualism,” the idea that meaning is to be found in the governing text, and also for “originalism,” that you are looking for the “meaning that the text has borne from its inception” — here, I’m quoting from the book. And of course you reject judicial speculation about either what the text means from content outside of the text or the “desirability of the consequences of the reading” — that’s also from your introduction. Text of course governs, but what would you say to the argument that the ability to rely on the original meaning weakens over time? Is there a difference between applying textualism to a contract written in 2008 versus a document written in 1787?
SCALIA: No, it seems to me that the parties agreed to what they agreed to, and I don’t know why it would be fair to give one side or the other a change in the obligations simply because of the passage of time. They said what they said, and they agreed to what they agreed to. I don’t see how the antiquity of the text has any bearing on whether its proper to give it the meaning that the parties that drafted it — if it’s a bilateral contract, or the public that received it, if it’s a statute or an ordinance — understood it to mean.
FRANZEN: Some would be surprised to see that you actually argue against strict construction. In fact, you include strict construction in your list of thirteen fallacies. Most people think textualism, originalism, and strict construction are sort of a trinity.
SCALIA: I think strict construction gives a bad name to textualism. My approach is to give the text a reasonable meaning that it bore when it was adopted. For instance, if you interpret strictly the First Amendment, it would be the case that Congress could censor handwritten letters, because, strictly, it covers only freedom of speech and of the press. A handwritten letter is neither speech nor press. Come on, that’s absurd, that’s not the meaning of the First Amendment. The First Amendment reasonably understood is a guarantee of freedom of expression, whether handwritten or oral, or semaphore or burning a flag.
FRANZEN. Then what about the Reno case, extending it to the internet?
SCALIA: Of course. There’s no reason why speech on the internet is not speech.
FRANZEN: Obviously the gentlemen in Philadelphia couldn’t have imagined the existence of the internet, but you think that fair reading of their intent would be that speech embraces future technologies?
SCALIA: I mean the internet is speech. An example of how you could distort the First Amendment is New York Times vs. Sullivan. I mean, at the time the First Amendment was adopted, libel was not a permissible form of speech. You could be liable for slandering someone. The Warren Court just decided, well, it’d be better if the press could criticize political figures with impunity, so long as they had some reasonable basis. That may be a good idea, and the people of New York State could have amended their libel law to have that result. But what the Court simply did was to give the First Amendment a meaning that nobody, nobody ever ratified. Nobody ever said you could not hold the press liable for slander.
FRANZEN: Then in the Gertz decision it went on to constitutionalize defamation law even outside the realm of public figures.
SCALIA: All of this may well be a good idea, but the issue is whether it’s a good idea that should have been imposed on the whole country by the courts or should have been left to democratic choice.
FRANZEN: In your introduction to Reading Law you referenced a book that we reviewed already, Judge Wilkinson’s book Cosmic Constitutional Theory.
SCALIA: Yes, yes.
FRANZEN: And of course, as you know, he ends up being sort of a constitutional agnostic.
SCALIA: Agnostic is the word, exactly.
FRANZEN: He ends up saying he is against all theories. But he also argues, in the course of going through all the theories, that even originalism can be subverted and used as a tool for judicial activism.
SCALIA: It’s quite true of course. I mean, any tool can be misapplied. The difference is that originalism does not invite the judge to apply his own predilections. Yes, he can do it under the cover of originalism but it doesn’t invite him to do that. Whereas the other theories, purposivism or consequentialism, the judge asks himself what would be a good result. And of course the good result is the result that he would like. So, there’s a great difference between a theory that can be abused — any theory can be abused — and a theory that invites abuse, that invites the personification of the law.
FRANZEN: The Ninth Amendment is one of the articles of the Constitution that is oftentimes perplexing to jurists. What should a judge do, when a statute or constitutional provision references something outside of its language? For example, in the Ninth Amendment, there is reference to rights retained by the people, but no enumeration of what those rights are.
SCALIA: He should apply the Ninth Amendment as it is written. And I apply it rigorously; I do not deny or disparage the existence of other rights in the sense of natural rights. That’s what the framers meant by that. Just because we’ve listed some rights of the people here doesn’t mean that we don’t believe that people have other rights. And if you try to take them away, we will revolt. And a revolt will be justified. It was the framers’ expression of their belief in natural law. But they did not put it in the charge of the courts to enforce.
Look, when I was in law school, if you had asked me what the Ninth Amendment was and my life depended upon it, I would be dead! Nobody ever used the Ninth Amendment for anything. Now, since those who have been using substantive due process have finally acknowledged that it’s a contradiction in terms, it’s silliness, it’s converting a procedural guarantee into a substantive guarantee, they abandon that and they want to jump over to various other devices to enable the courts to do what the courts would like to do. One of those devices is the Ninth Amendment. But that’s not what the framers meant by it. All they meant by it was: I do not deny or disparage the right to abortion, for example. I know that it’s not one of the rights protected by the Bill of Rights but I don’t deny or disparage it. If people want to argue there is a natural right of a woman to have an abortion, that’s fine. The mere fact that its not included in the Bill of Rights doesn’t mean that it doesn’t exist. But just don’t ask me to enforce it.
FRANZEN: So you’re just saying its not the province of the courts.
SCALIA: Right, if you believe it is a compendium of all unenumerated rights, you have to believe that the framers were nuts. I mean, did they go through the trouble of listing in detail, you know, the right to trial by jury in all matters of common law involving more than 20 dollars, no quartering of troops in homes, or one after another, and finally when you go, “yes, what should we add? Everything else.” That’s not the way you write a legal document. And this was a legal document. Just as the Tenth Amendment is nothing but an expression of the belief in federalism, so also the Ninth Amendment is nothing but an expression of belief in the natural law. But it is not an invitation to the judges to apply whatever they think the natural law says.
FRANZEN: As I went through your book there were a lot of fabulous quotations — bon mots, I would say. I especially enjoyed, for example, A.P. Herbert’s fictional Lord Mildew who said, “if Parliament does not mean what it says, it must say so.” I thought that was great.
SCALIA: It’s a good one.
FRANZEN: So I was so impressed by the research in the book — how did you and Professor Garner assemble all this material?
SCALIA: I could not have done this book without the assistance of Bryan Garner because I could not use my own law clerks for the research on it. Bryan is a professor, and he has student assistants. They dug up some of the examples of cases. And he also has a substantial staff at LawProse, which is his company. These are seasoned lawyers, some of them nine years out, seven years out and so forth. And those people dug up most of the case examples. You know, Bryan and I reviewed them, and threw out a lot of them, and revised the description of some others. But that’s how we were able to put it together. I couldn’t have done it personally, nor could Bryan have done it personally.
FRANZEN: Well, there’s tremendous scholarship in there. A lot of the canons of interpretation, of course, have their roots in Roman law. And [there are] lots of Roman maxims throughout the book.
SCALIA: Ah, you know why? Because it’s common sense. Most of them are just common sense. So of course they would have been expressed in Latin, probably were expressed in Greek, I don’t know.
FRANZEN: I even saw a citation to Justinian’s Digest — I haven’t seen one of those lately. But I wonder, do you think, did the Romans really sum up the principles of interpretation, or do you see a contribution from the English common law courts on this subject?
SCALIA: Oh, I don’t think all of these canons are traceable to Roman law. I think probably most of them are developments of the common law courts — probably most of them.
FRANZEN: It seems that you draw distinction between the English common law, where, as you’ve explained, judges had almost a legislative power, versus the common law tradition in the United States. How do you think that is playing out in our judicial system?
SCALIA: Well that’s very interesting. You know, our common law courts originally adhered to the English system that I describe, and once they found the common law, it couldn’t be changed except by the legislature. It was about in the 1840s that you had the first American cases that say, “when the reason for the law changes, the law itself changes”— you know that maxim — and the common law courts feel the power to change the common law. That was something new. That also happens to be the time, and I don’t think it’s an accident, when the Americans began to elect their judges. Because seeing the great power that the judges had to change the law, they probably felt a need for more democratic input into the system.
FRANZEN: It’s interesting that you mention that particular principle — “where the reason for the rule ceases so the rule should cease.” That was the favorite adage of the first lawyer I worked for. He was a Harvard Law graduate and did a lot of constitutional litigation. I heard that rule cited every day. It’s not mentioned anywhere in your book. Is it a canon of interpretation or would you say that maybe it should be included in the fallacies?
SCALIA: Well, it’s obviously an adage that applies to the lawmaker, not to the law interpreter. A legislator should be aware of the fact that when a reason for a law is eliminated, the law itself should be abolished, or the law itself should be altered. And so should a judge be aware of that, if a judge is acting in a common law capacity and making the law. But it’s rare in modern times that judges make the law, even in states where judges still have common law powers. Most of the law is codified, and the judge is almost always dealing with a text. And it certainly is not true with respect to a text — that when the reason for the text disappears, you can ignore the text, or rewrite the text, or distort the text. Nobody ever thought that was a principle applicable to textual interpretation; it was applicable to lawmaking, common law lawmaking.
FRANZEN: A lot of your canons are often cited in the cases and received principles of interpretation, such as the text must be construed as a whole. But you list 13 fallacies, and I want to ask you how you came up with that number. Was that just a coincidence?
SCALIA: Ah, you know, Bryan didn’t like that, he wanted to either invent a fourteenth — but it is what it is.
FRANZEN: A number of those 13 are open to debate. For example, what you call the “false notion that the spirit of the law should prevail over the letter.” There must certainly be people who take issue with that.
SCALIA: Oh, undoubtedly!
FRANZEN: Or “that the quest of interpretation is to do justice” — many would say that is not a fallacy. So, here it seems that you and Professor Garner are arguing a case as opposed to condensing law. Would you agree?
SCALIA: Oh, we say that early on in the book, in the introduction I think, that this book purports to be normative, not descriptive. Normative, what the law ought to be. And thus we reject some canons that are often expressed, such as “the spirit of the law prevails over the letter.” Courts say that sometimes, but that’s not a proper role for non-common law courts.
FRANZEN: Well, perhaps the fourteenth fallacy would be “where the reason for the rule ends the rule ends.” In the revised edition you might want to add that!
SCALIA: We might want to add that — we could avoid unlucky thirteen!
FRANZEN: That maxim actually is in the California Civil Code.
SCALIA: Is it really?
FRANZEN: Yes, Civil Code Section 3510.
SCALIA: But does it govern enacted laws? I doubt it. I doubt whether the California courts ever said that because of this provision of the code, we can disregard statutes because we think times have changed and the reason.
FRANZEN: It’s not cited very much but it is in the code. It’s under a section called Maxims of Jurisprudence, where they list maxims, including some of the ones that are in your book.
SCALIA: Let me note that down, we should probably have a section on when the reason for the law ceases to exist so does the law itself.
FRANZEN: So you would say that on the issue of the fallacies that you put together, that is something where the law isn’t settled, you’re arguing a case there.
SCALIA: Sir, the law is not settled on textualism! I mean, of course the whole book is normative, it argues the case for textualism again, against whatever crazy system you want to replace it with, all of which boils down to the judge doing what he thinks is a good idea. That’s not descriptive, it’s normative, and so also throughout the book we don’t purport to be describing what all the courts do, but describing what they should do.
FRANZEN: What do you hope the impact of Reading Law will be?
SCALIA: I obviously hope that every judge will read it, and be persuaded of the correctness of treating text as democratically adopted text. And, you know, whether that will be so or not, I’m not sure. I am much more confident that a lot of lawyers will use the book because, as I said earlier, there is no other place where you can find all of the canons set forth unless you want to go back one hundred years. And they are useful to lawyers — whatever side you’re arguing, there’s usually some canon on your side. So I think lawyers will certainly use a lot of it. I hope judges will.
FRANZEN: Well, we have two copies in our office now, so we will definitely use it. Just a last line of questions — like you, I’m a great opera lover and I couldn’t help but wonder as I went through the canons of interpretation and thought about originalism and textualism — do these principles, in your view, have any application to the performing arts? Is there a doctrine of originalism, say, applied to Wagner’s Ring Cycle? Should we be trying to follow Wagner’s original intent? Should we be applying textualism to Verdi?
SCALIA: Oh, I would probably be an originalist in the arts as well, and its not just opera, even in symphonic music. Do you follow Beethoven’s notations, or as an artist yourself, if you’re the conductor, do you improve upon them? That’s always a controversy among artists, I think. And for myself I generally do not like taking liberties with the original.
FRANZEN: Well, maybe that can be a fifteenth fallacy — to apply a “living constitutionalist” approach to opera.
SCALIA: Although, I’ll tell you, I can’t say I always hate it. There was a production of La Bohème by the Washington company which was quite avant-garde, and the scene at the café where Musetta’s waltz, it’s a bar room that looks like the bar scene from Star Wars, there’s all these really crazy characters in the place. Now, I thought it was wonderful. Ruth [Bader Ginsburg] hated it, Ruth hated it!
FRANZEN: Well, that’s interesting, so maybe she’s an originalist when it comes to opera.
SCALIA: I don’t know, maybe, maybe.
FRANZEN: And you switch places when it comes to the arts!
Well thank you very much, Justice, for your time.
SCALIA: Thank you, I enjoyed talking to you.