In “Reading Law,” Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner argue for paying close attention to the original meaning of the words in the Constitution and other legal documents.

(published in The Wall Street Journal, August 29, 2012)

By DAVID B. RIVKIN JR.

For many years now, a debate has raged over how best to interpret the Constitution and other canonical legal texts. One way of grouping the warring parties is to divide them according to their views of writing itself—the words on the page. The textualists feel a strong loyalty, even a moral commitment, to the words themselves and the meanings they were intended to convey. The non-textualists have a very different approach, guided by a peculiar view of democratic society and the law.

Like the government in Anthony Burgess’s “A Clockwork Orange”—setting out to adjust the behavior of inherently flawed men and women—non-textualists see the American electorate as a collection of people in need of improvement and democracy as too error-prone to do the job. Their solution is to vest judges with the ability to “adjust” the law in order to ensure a more “progressive” direction, loosely interpreting the wording of statutes and the Constitution and sometimes disregarding the wording entirely. The result is a search for non-democratic shortcuts as the best way to promote fairness and social justice.

Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner are having none of it. In “Reading Law,” they argue forcefully for a textualist approach—for interpreting legal documents, especially the Constitution, by focusing on written words in their original meaning. Along the way, the authors debunk the claims of the non-textualists, who, they say, seek to deconstruct the language, imposing on it a content that was never expressed. Such an effort, they note, defeats the whole purpose of communication and substitutes the reader’s ideas for those of the writer.

Textualism, the authors claim, is inherent in written language itself, which enables writers to convey their ideas with specificity and precision. Thus in Anglo-American jurisprudence, textualism has been the guiding interpretive method for centuries, the bedrock assumption of judges as well as legislators. “Reading Law” offers a panoply of examples from English and American history in which the original meaning of written words has guided decisions over rival claims—from a run-of-the-mill land deed to the Magna Carta and the U.S. Constitution. To trace textualism’s deep roots, the authors describe a Scottish statute, circa 1427, which, as they put it, “made it a punishable offense for counsel to argue anything other than the original understanding.”

Though other approaches have always jostled for supremacy, a full assault on textualism—embodied in such ideas as the “living Constitution”—dates only to the mid-20th century. One of the central claims of the non-textualists is that language is too slippery, and meaning too “relative,” to allow for consensus and clarity. But in fact, the authors say, there is an extraordinary amount of agreement about the intended meaning of most legal texts, even if there is still room for interpretive dispute. It is only in a small minority of politically and socially sensitive cases, they note, that non-textualists allegedly cannot discern the written text’s original meaning.

But of course the real disagreement over the role of texts in law has to do with both method and purpose. The non-textualists—whether judges, lawyers or law professors—are keen, above all, to promote a particular outcome, and the original meaning of a text can get in the way. Non-textualism, by contrast, empowers the reader (or judge) to do as he pleases. Such a freewheeling approach is a problem in nearly any context, but it is especially pernicious in the law, where precision, predictability and legitimacy are so important. In any democracy, and particularly in our constitutional system, non-textualism transfers power from the people to unelected judges.

Not surprisingly, it is in construing the Constitution that non-textualists make their strongest stand. Justice Stephen Breyer, the judiciary’s foremost opponent of the original-meaning approach, is candid enough about his motivations. In his 2010 book, titled “Making Our Democracy Work: A Judge’s View,” Justice Breyer wonders: “Why would people want to live under the ‘dead hand’ of an eighteenth-century constitution that preserved not enduring values but specific eighteenth-century thoughts about how those values then applied?” A textualist might answer that, if today’s citizens don’t like what the 18th-century Founders decided upon—and what they put down in a document that was, after all, ratified by democratic vote—they can amend it.

As the authors make their argument for textualism, they are eager to show that it is a good deal more than a dull and primitive literalism. They cite passages from Shakespeare and from case law to reveal, for example, the ways in which “associated words” in a list or grouping point toward certain definitions and eliminate others. Similarly, generalizations in the law (e.g., the phrase “any other person”) may be more precise than an over-literal reading might suggest, depending on the specific nouns that come before or after. Drawing on statutes, amusing hypotheticals and the work of distinguished legal philosophers, the authors present 57 “canons” that should govern text-based legal thinking and judgment. They also expose 13 “falsities”—for example, “the half-truth that consequences of a decision provide the key to sound interpretation.”

Justice Scalia and Mr. Garner have written a remarkable book that reshapes the long-running debate about what it means to be a judge and the very role of the law in our polity. It is also a compelling guide to interpreting legal documents, certain to be used by legal practitioners and scholars. The authors, it should be noted, do not suggest that textualism leads to easy comity among jurists or anyone else. They concede that, even if minds agree on meaning, “hearts often disagree on what is right.” The answer, though, is not for judges to impose their idea of right, and thereby distort the law, but to concentrate on “what an enacted law means,” an effort that requires “discipline and self-abnegation.”

Mr. Rivkin, a constitutional lawyer, served in the Justice Department under Presidents Reagan and George H.W. Bush.

A version of this article appeared August 29, 2012, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: The Triumph Of the Text.

 Source: http://online.wsj.com/article/SB10000872396390444318104577589613733295148.html?mod=asia_opinion