Justice for Scalia

1.

Appointed to the United States Supreme Court by Ronald Reagan in 1986, Antonin Scalia has already proved a remarkable justice. Much concerned with questions of legal theory, he has brought to the bench a sharp intelligence, lively prose that fairly jumps from the dreary pages of the Supreme Court reports, and a determined commitment to reform the ways courts interpret the law.

Scalia holds strong convictions. Charming and pugnacious, he appears to enjoy and sometimes even to court controversy. To the general public this tendency is most visible in Scalia’s many opinions that articulate conservative positions on hotly contested issues like abortion rights and affirmative action. But to the legal profession Scalia is equally well known for his insistent advocacy of the interpretative method known as textualism.

Textualism is a theory of the way judges ought to interpret legal documents, like statutes and the Constitution. Scalia uses the theory to support a number of highly consequential and controversial propositions. He believes that judges who interpret statutes should avoid all reference to legislative history. And he also believes that judges should interpret the Constitution strictly according to the original meaning of its language.

Although Scalia was well known for his textualism at the time of his appointment, A Matter of Interpretation: Federal Courts and the Law sets forth a concise defense of the theory, considered now from the mature perspective of a seasoned and powerful justice. The book consists of the Tanner Lectures which Scalia delivered at Princeton University in 1995, along with commentary on the lectures by Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, as well as Scalia’s response.

1.

Most litigation in federal courts involves the interpretation of statutes. Yet, as two prominent law professors have put it, the “hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.”¹ Uncertainty in the interpretation of legislation adversely affects not only lawyers and judges, but all those who seek to live by the laws. In A Matter of Interpretation Scalia is right to call for a vigorous reassessment of our practice of statutory interpretation. His book’s main contribution is to remind us that legal authority attaches to the text of a duly enacted statute, not to the unenacted intentions of legislators.

Questions of interpretation arise when the meaning of a statutory text is not clear. Scalia believes that the theory of textualism requires courts to determine statutory meaning by referring to ordinary language usage, to generally accepted rules of construing texts, and to other legislation that has been passed. The chief theoretical position that Scalia wants to defend in A Matter of Interpretation is that courts ought scrupulously to avoid referring to legislative history when they are attempting to understand an ambiguous statute. Legislative history consists of items such as committee reports, floor debates, and legislative drafts—all the available documents and statements that accumulated while a statute was being passed. Scalia writes: “I object to the use of legislative history on principle, since I reject intent of the legislature as the proper criterion of the law.” Scalia fears that if judges can rely on legislative history, courts will engage in “judicial lawmaking” by seizing on one piece of evidence or another to write their own preferences into law.

Scalia’s relentless campaign against the use of legislative history, and his refusal to join opinions interpreting statutes by referring to that history, have been astonishingly effective. One recent study estimates that the proportion of Supreme Court opinions in cases involving statutory construction that refer to legislative history has dropped from 100 percent in the 1981 term to 18 percent in the 1992 term.² Scalia may justly claim a large share of the responsibility for this transformation.

For this reason it is all the more important to stress that Scalia’s opposition to the use of legislative history rests on exceedingly shaky theoretical foundations. Scalia readily acknowledges that if the meaning of a text is unclear, “the principal determinant of meaning is context.” In ordinary life the intentions of a speaker are central to the process by which we determine his meaning. If someone casually observes that “Casey has thrown a disc,” I would want to know something about the speaker’s intention in order to understand whether the comment refers to the state of Casey’s back or to the integrity of his CD collection.

Scalia does not dispute this, and he even concedes that there may be extreme cases where legislative history may be consulted in order to determine whether there has been a “‘scrivener’s error,’ where on the very face of the statute it is clear to the reader that a mistake of expression…has been made.” In his commentary, Ronald Dworkin cannily seizes upon this concession and brings out its implications.

Purporting to save Scalia from the inconsistency of allowing “intention to trump literal text,” he reconstructs Scalia’s position as resting on the distinction between what Congress “intended to say in enacting the language [it] used,” which Dworkin calls “semantic intention,” and what Congress hoped to achieve by using that language. Dworkin notes that “any reader of anything must attend to semantic intention, because the same sounds or even words can be used with the intention of saying different things.”

Scalia accepts Dworkin’s distinction, and he acknowledges the necessity of referring to semantic intention:

I agree with the distinction that Professor Dworkin draws…between what he calls “semantic intention” and the concrete expectations of lawgivers. It is indeed the former rather than the latter that I follow. I would prefer the term “import” to “semantic intention”—because that puts the focus where I believe it should be, upon what the text would reasonably be understood to mean, rather than upon what it was intended to mean. Ultimately, of course, those two concepts chase one another back and forth to some extent, since the import of language depends upon its context, which includes the occasion for, and hence the evident purpose of, its utterance. But so far Professor Dworkin and I are in accord: we both follow “semantic intention.” [my italics]

But Dworkin’s distinction is a poisoned gift. Having accepted it, Scalia can no longer maintain any principled objection to the general use of legislative history. Such history may always reveal something about “the occasion for” the enactment of a statute and hence illuminate the search for semantic intention.

Scalia’s concession, however, causes even deeper theoretical damage to his argument. In his Tanner Lectures Scalia contends that “with respect to 99.99 percent of the issues of construction reaching the courts, there is no legislative intent, so that any clues provided by the legislative history are bound to be false.” Scalia evidently means that in the bustle of lawmaking most legislators simply do not have any view with regard to the kinds of questions of statutory interpretation that typically come before courts. They do not in fact have “any preference as to how [these questions] should be resolved.” But Scalia cannot simultaneously accept Dworkin’s concept of semantic intention and maintain his purely empirical and contingent definition of legislative intent. Otherwise most statutes would, on Scalia’s own account, have no semantic intention at all.

So Scalia must abandon his empirical definition and instead attribute semantic intention to the “evident purpose” of legislation. This attribution implies that Scalia must approach legislation on the presumption that it will have such a purpose. He must assume that legislation, in Felix Frankfurter’s words, is “an active instrument of government which, for purposes of interpretation, means that laws have ends to be achieved”:

Legislation has an aim; it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government. That aim…is evinced in the language of the statute…. That is what the judge must seek and effectuate…. We are not concerned with anything subjective. We do not delve into the mind of legislators or their draftsmen, or committee members…. [T]he purpose which a court must effectuate is…that which it did enact, however inaptly, because it may fairly be said to be imbedded in the statute….³

To put the matter simply, Scalia, like virtually all other American judges, can only proceed on the presumption that legislation is enacted for a reason, one that cannot be reduced to the empirical intentions of actual legislators. This reason must be for him the “legislative intent” of the statute. It follows that courts should be denied access to legislative history only if their interpretation of this legislative intent ought in principle to bear no connection whatever to the actual intentions of those who enact statutes.

It is hard to see how this position can be defended. We do not in ordinary life radically disassociate the purpose of an action from the intentions of the actor. Oliver Wendell Holmes once famously observed that “even a dog distinguishes between being stumbled over and being kicked,”⁴ and the distinction turns largely on the intent of the actor. Even if we were to agree with Scalia (and Frankfurter) that the purpose of legislation is not reducible to the empirical intentions of actual legislators, it would still not follow that these intentions should have no relevance to our understanding of legislative purpose. To the contrary, such intentions seem at least pertinent to understanding “the occasion for, and hence the evident purpose of,” a statute, which is why Frankfurter himself advocated the judicious use of legislative history.⁵

The gulf between Scalia’s theory and his conclusion is so wide that one must inquire why Scalia so adamantly presses his case for disregarding legislative history. The answer, I think, lies in his view that the use of legislative history has “on balance…facilitated rather than deterred decisions that are based upon the courts’ policy preferences, rather than neutral principles of law.” The history of a particular piece of legislation may include abundant and often contradictory evidence, sometimes strategically planted by interest groups and legislative staff in the form of statements, drafts, and congressional speeches that could provide the basis for future lawsuits. Scalia fears that if such evidence is made available to judges they could use it to write their own preferences into law.

Scalia’s conclusion, then, does not flow from his theory of legislation; it springs instead from his mistrust of judges. But no plausible interpretative technique can eliminate the need for judicial judgment,⁶ and Scalia’s mistrust of judges would thus disqualify all interpretative methods. Judges who are willing to abuse the ambiguities of legislative history would also be willing to abuse the ambiguities of ordinary usage or technical legal rules of interpretation; they could certainly manipulate the general context of existing legislation. The problem of judicial lawmaking can ultimately be solved only when judges become fully aware of their legitimate functions. It cannot be solved by suppressing evidence that is plainly material to informed decision-making.

2.

Mistrust of courts, however, is a theme that also emerges in Scalia’s theory of constitutional interpretation. Scalia is an “originalist” who seeks to confine statements about the meaning of the Constitution to the original meaning of the text. He has been accused of inconsistency, because his repudiation of legislative history seems incompatible with his repeated references to “the legislative history of the Constitution—e.g., The Federalist Papers or Farrand’s records of the constitutional convention—to give meaning to the open textured provisions of the Constitution.”⁷

In A Matter of Interpretation Scalia responds to this accusation by claiming that historical sources are for him relevant to the question of “how the text of the Constitution was originally understood…. What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.” But this response only deepens the difficulties with Scalia’s position. For if historical materials such as The Federalist Papers are relevant to determining textual meaning in the case of a constitution, why are they not also relevant to determining textual meaning in the case of a statute?

It is clear that both Scalia’s originalism and his approach to statutory construction reflect an intense distrust of the courts. In his Tanner Lectures Scalia observes that he is less interested in the distinction “between [the] Framers’ intent and objective meaning” than he is in “the Great Divide” between “original meaning (whether derived from Framers’ intent or not) and current meaning.” Scalia is most concerned to oppose “the philosophy which says that the Constitution changes,” that it evolves in time, or that it is, as is sometimes said, a “Living Constitution.” Scalia objects to these positions in part because in his view they “cater” to judicial “willfulness” and facilitate judicial usurpation of the “democratically adopted text” that is the Constitution.

Scalia’s originalism would not be very convincing were it primarily to depend on his distrust of courts, for, as has been noted, such distrust could undermine all forms of interpretation. But Scalia offers a different and more powerful argument. He begins with the indisputable premise that ultimate legal authority lodges in the text of the Constitution. When a constitutional text is ambiguous, courts must use interpretative techniques to ascertain and apply its meaning. As with statutory construction, our choice of techniques will depend upon our understanding of the purpose or function of the text.

Scalia claims that the “whole purpose” of the Constitution “is to prevent change—to embed certain rights in such a manner that future generations cannot readily take them away.” That is why he insists that the Constitution must be interpreted to reflect its original meaning rather than “the aspirations” of our own time. Scalia’s originalism is therefore built on a more solid theoretical foundation than his approach to statutory construction. It derives from an argument about the fundamental purpose of the Constitution, and not merely from a generic distrust of courts.

Scalia has no doubt identified an important purpose of the Constitution. But has he identified its “whole purpose”? In his commentary Laurence Tribe astutely notes that Scalia’s originalism is tempered by his allegiance to the doctrine of stare decisis, which holds that courts should be bound by their own past precedents. Because of stare decisis the text of the Constitution actually plays an almost negligible part in most constitutional decisions. Judicial opinions mostly interpret previous decisions, creating complex doctrines that bear little relation to the constitutional text.

Scalia acknowledges Tribe’s point, responding that “originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis.” Scalia attempts to minimize the significance of his concession by adding that “stare decisis is not part of my originalist philosophy; it is a pragmatic exception to it.” But the damage of Tribe’s criticism is not so easily contained.

Scalia accepts stare decisis because he agrees that one purpose of the Constitution is to “put into practice” an “ongoing system of law,” and he recognizes that stare decisis is required to establish the stability and predictability necessary for the rule of law. If courts were to decide each constitutional case from scratch, and if the outcomes were to depend entirely upon fresh perceptions of the Constitution’s original meaning, it is highly questionable whether the Constitution could generate rules of law.

The significance of Scalia’s concession is therefore that the “whole purpose” of the Constitution is not exhausted by the entrenchment of certain rights beyond the possibility of change. An equally fundamental purpose is establishing rules of law. These two purposes are sometimes in tension, and yet one is not logically prior to the other. There is no overarching theory that can settle the question whether in any given case a court ought to continue to apply existing doctrine or whether it should instead abandon that doctrine in favor of a direct reference to the Constitution’s original meaning. In such circumstances courts must choose between two distinct forms of constitutional interpretation.

Those who agree with Justice Brandeis that “our Constitution is not a strait-jacket” but “a living organism… capable of growth”⁸ believe that the Constitution serves yet a third purpose involving yet a third interpretative approach—one that requires the courts to take account of the realities of American life. In the past Scalia has himself candidly recognized the inescapable appeal of this third purpose:

What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for certain criminal offenses? Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge—even among the many who consider themselves originalists—would sustain them against an eighth amendment challenge. It may well be…that this cannot legitimately be reconciled with originalist philosophy…. Even so, I am confident that public flogging and hand-branding would not be sustained by our courts, and any espousal of originalism as a practical theory of exegesis must somehow come to terms with that reality.⁹

The “reality” described by Scalia is precisely what the metaphor of the “living” Constitution attempts to express. Courts would now invalidate flogging as cruel and unusual punishment regardless of “what was said” in 1791 and regardless of the absence of precedent, because judges would feel compelled in such a case to read the Constitution as a document that, as Justice Marshall asserted in Marbury v. Madison, in some sense constituted “the whole American fabric,”¹⁰ and because they would find flogging intolerably inconsistent with that fabric. Such a reading cannot be dismissed as a momentary (but widely shared) lapse of professional discipline. It derives from an authentic strand of our constitutional heritage that has been manifest since its inception. No one has expressed this reality better than Oliver Wendell Holmes:

When we are dealing with words that are also a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in light of our whole experience and not merely of what was said a hundred years ago.¹¹

At some point every judge will say that one purpose of the Constitution is to consolidate the “whole experience” of the nation, which we may call the national ethos. Scalia has himself so interpreted the Constitution. His passionate opinions opposing race-based affirmative action, for example, make no serious effort to explore the original meaning or language of the Equal Protection Clause of the Fourteenth Amendment. They turn instead on an urgent appeal to the “American principle” that “men and women” should not be classified “on the basis of…the color of their skin.”¹² For Scalia this principle is fundamental to the very character of the nation and hence inescapable as a ground for interpreting the majestic but delphic generalities of the Fourteenth Amendment.

It is common ground among virtually all judges, then, that the Constitution serves at least three distinct purposes. It establishes particular understandings in a way that makes it difficult for them to be changed; it creates rules of law; and it crystallizes the principles that constitute the national ethos.¹³ No credible judge, certainly not Scalia himself, is willing to abandon any of these purposes. Each is rooted in the commitments of our shared history. Each requires a distinct interpretative approach. Judgment alone can determine which of these purposes is appropriate for interpreting particular constitutional texts in particular cases. To exercise this judgment is to engage in the difficult and contestable work of making constitutional decisions.

3.

Scalia’s textualism is radical in the true sense of the word: it seeks to overturn longstanding and established practices of both statutory and constitutional interpretation. The reasons that drive Scalia to this position are fundamentally jurisprudential. Scalia believes that the rule of law, the aspiration to live under a government of law rather than of men, requires that judges subscribe to general rules that sharply constrict judicial discretion, which Scalia views as corrupting the democratic will that would otherwise be expressed by both legislation and the Constitution. In his commentary in A Matter of Interpretation, the historian Gordon Wood perceives that Scalia’s ambition in this regard is to convert a judge, in Thomas Jefferson’s words, into “a mere machine” that accurately transcribes and applies the popular will. Scalia advocates textualism because he believes that this method of interpretation is most likely to facilitate the statement of the general rules necessary for such a “machine.”

Others besides Scalia have in the past advocated a similar jurisprudence,¹⁴ but it has always remained a distinctly minority position. This is because it ultimately rests on what Scalia accurately characterizes as a “dichotomy between ‘general rule of law’ and ‘personal discretion to do justice.”‘¹⁵ But this distinction wrongly characterizes the nature of legal rules. Consider, for example, the following three rules, each addressed to a police officer regulating traffic at an intersection:

1. Traffic should be regulated as the police officer on duty sees fit.
2. Traffic should be regulated so as to avoid congestion.
3. Traffic should be regulated so that it alternates between two minutes’ movement in a north-south direction, and three minutes’ movement in an east-west direction.

The dichotomy on which Scalia rests his argument accurately captures the contrast between Rule 1 and Rule 3. Rule 1 entrusts traffic control to the discretion of the police officer, while Rule 3 strips the officer of discretion. Rule 3 renders the officer “a mere machine” by imposing upon him purely administrative—in legal jargon “ministerial”—duties, while Rule 1 liberates the officer to carry out his personal vision of social order.

Scalia’s dichotomy, however, excludes the possibility of Rule 2, which obliges the traffic officer to make decisions based upon his judgment rather than upon his discretion. Rule 2 requires the officer to determine the meaning of “congestion”—which he must do on the basis of his under-standing of local conditions and experience—and to act in order to avoid it. The officer’s judgment is sociologically and jurisprudentially quite distinct from his discretion: whereas discretion authorizes the exercise of subjective preferences, judgment demands the application of norms that derive from shared experiences.

The difference is apparent if we consider the following two statements:

1: “I like strawberry ice cream.”

2: “Homer is a great poet.”

The first states a preference. It makes little difference whether we view the preference as an expression of personal desire or as a factual characterization of the subjective state of mind of the speaker. In either case the preference makes no claim whatever on the person to whom it is addressed. In contrast, the second statement expresses a judgment, which invites the persons to whom it is addressed to participate in a common process of evaluation. This process proceeds on the presupposition that both the speaker and those he talks to are committed to interpreting and applying shared standards. In the case of Proposition 2, these standards concern aesthetic quality; in the case of Rule 2, these standards concern the appropriate movement of traffic.

Because such standards are socially and historically specific, the validity of a judgment is always relative to the social group whose standards are being applied. As the philosopher Ronald Beiner has observed, “There must be underlying grounds of judgment which human beings, qua members of a judging community, share, and which serve to unite in communication even those who disagree (and who may disagree radically)…. Judgment implies a community that supplies common grounds or criteria by which one attempts to decide.”¹⁶ To exercise judgment is thus to participate in the definition of the community whose standards validate the judgment.

American law, and particularly American constitutional law, is filled with rules that, like Rule 2, require the exercise of judgment. Every time a court considers whether a government regulation is an unconstitutional “taking” of private property, or whether a restriction of speech violates the First Amendment, it must interpret and apply the standards that historically define the national community.¹⁷ That is why constitutional law has historically always been a major vehicle for institutionalizing a national ethos, whether in matters of free speech or protection of property rights.

But Scalia, who came of age as a conservative at a time when the prevailing judicial culture was distinctly liberal, strongly objects to this aspect of constitutional law. He does not trust judges to interpret a national ethos, and he has therefore sought to translate constitutional law into a series of merely “ministerial” rules (like Rule 3) that exclude the possibility of judgment. He has advocated textualism because he believes that it will lead judges to construct such rules.

But in fact there is no logical or practical connection between textualism and the nature of constitutional rules. As the commentaries of both Ronald Dworkin and Laurence Tribe indicate, one can read a text as requiring rules of judgment, and, conversely, one can fashion ministerial rules even in the absence of a text. The nature of constitutional rules depends on the interpretation of the Constitution’s meaning and purposes, not on theories of interpretation such as textualism.

These points are well illustrated by Scalia’s recent controversial opinion in Printz v. United States, in which Scalia struck down as unconstitutional provisions of the Brady Handgun Violence Prevention Act. At issue in the Printz case was the Brady Act’s requirement that state law enforcement officers perform background checks on handgun purchasers. The constitutional question was whether the federal government had the power to compel state officers to administer or enforce federal regulatory programs. By a vote of five to four the Court decided against the federal government.

Scalia began his opinion for the Court by conceding that “there is no constitutional text speaking to this precise question.” He then reviewed the fragmentary and equivocal evidence of the original intent of the Framers, which provided little guidance. The essence of Scalia’s constitutional judgment, therefore, rested on what Scalia himself called “the structure of the Constitution,” i.e., on whether he could “discern among its ‘essential postulate[s]’…a principle that controls the present cases.”¹⁸ Scalia located such a principle in the ideal of federalism, which addresses the “separation of the two spheres” of federal and state power, and which Scalia interpreted as “one of the Constitution’s structural protections of liberty.”

It is clear from the context of his opinion that Scalia would have preferred to implement this value by means of a flat rule prohibiting the federal government from ever requiring state officers to perform any action. But the fifth vote of his five-person majority, Justice O’Connor, evidently refused to agree to this disposition of the case, writing instead that “the Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities…are similarly invalid.”¹⁹ So Scalia was left defending a judgment that prohibited Congress from commanding state officials “to administer or enforce a federal regulatory program,” as distinguished from requiring state officials merely to report information.²⁰

Printz nicely demonstrates the degree to which Scalia’s judicial practice is entirely independent of the interpretative methods advocated in A Matter of Interpretation. Without any text to guide his opinion, Scalia in Printz nevertheless decided the case on the basis of constitutional values he was able to discern in the structure of federalism. These values did not derive from historical evidence of the original intent of the Framers, but instead from Scalia’s contemporary perception of the national ethos of our federalism. Whether the ideal of that federalism is best expressed by a rigid rule entirely forbidding federal use of state officers, or by a more flexible principle sensitive to the nature and scope of such use, is a question that must depend primarily on our understanding of the nature of federalism and of whether its purposes are better served by uniformity and predictability or instead by flexibility and accommodation. The fashioning of the right constitutional rule to express the ideal of federalism is an issue that depends on interpreting the meaning of the Constitution, and not on some general interpretative method such as textualism.

A Matter of Interpretation is not convincing when it suggests that the great political issues of constitutional adjudication would somehow be eased if only we could understand and apply the right principles of interpretation. The Constitution is not a puzzle to be solved, and there is no escaping the hard responsibility for judgment that the practice of constitutional adjudication imposes upon our judges. As the Printz case illustrates, it is far better in these matters to rely on Scalia the Justice than on Scalia the theoretician. The Justice knows that our Constitution is an untidy and complex charter of governance which cannot be reduced to the purposes and prescriptions of any single interpretative method.