Review: A Matter of Interpretation

Title: A Matter of Interpretation: Federal Courts and the Law
Author: Antonin Scalia
Publisher: Princeton: Princeton University Press, 1997
ISBN: 0-691-00400-5

Justice Antonin Scalia's book, A Matter of Interpretation is essentially Scalia's essay followed by a set of essays in response by various authors, themselves of which are followed by a final response from Scalia. These essays form an excellent introduction to several major lines of thought in Constitutional interpretation, written by some of the foremost figures in each area. Scalia sets himself out as a textualist, interpreting a text as it is written, neither more nor less (23).

Ronald Dworkin points out that there are in fact two types of textualists (or originalists): semantic-originalists who look at what the authors intended to say, and expectation-originalists, looking at what authors intended the outcome of the legislation to be (120). Scalia leans too much towards the latter camp, says Dworkin; a real textualist would concentrate on what the authors intended the text to be, which would allow a judge to interpret that text based upon contemporary situations. Gordon Wood agrees, but says that while parts of the Constitution may be lay down narrow rules and other parts may describe broad aspirational principles ripe for interpretation, it's many times difficult if not impossible to determine which is which.

These various arguments are interesting, entertaining, and thought provoking, but they are a very localized, microanalysis. They ignore a large meta-problem: how does one determine which framework of interpretation to choose? That is, how does one determine the basis for choosing between interpretations? What are the meta-interpretation rules?

Wood, for example, tries to show that in the past legislative and judicial functions were often merged (60). Scalia rightly asks why this history matters—just because it was done does not make it a good thing (131). Scalia's own propositions can be met with the same argument, however: even if we were able to determine what the legislature meant to say, or even what a legislature meant to effect, who is to say that this is the best way to interpret a text? Why not interpret a text differently from what it was supposed to mean upon its creation?

Scalia objects that this would go against one of the principles in the Constitution that only the legislature makes the rules, but as Tribe points out, trying to find principles within a document that justifies an interpretation of the same document is a self-referential problem that does not explain how one interpreted those principles in the first place, much less the source of the principles that justified those interprations in the first place (76-77). Isn't it circular reasoning to justify an interpretation of a text based upon an interpretation of how the text claims itself should be interpretated? Isn't it paradoxical to say that the authors of a document intended that the intentions of the authors be ignored?

Any attempt to determine a method of Constitutional interpretation, I believe, must be preceded with a step back, away from the document itself, for a determination of a metaframework for determining an interpretation method. Before discussing the pros and cons of any particular interpretation framework, a set of requirements must be created for choosing between them. How will they be judged? What common set of vocabulary will be used to described them? What objective criteria will one use in weighing the different methods?

Such a metaframework might be based completely on principle: "Only the framework that best upholds some sort of a priori idea of human rights is valid" iss one example. Obviously such a claim would have great impact on which interpretational framework were followed, showing the importance of first agreeing on such a metaframework. If the selection criteria can't be agreed upon, any discussion of a specific framework would be in a different language altogether than another discussion—which is seen to some extent in this set of essays.

The metaframework might on the other hand be based, not on principle, but on pragmatism: "Choose the best interpretational framework that provides the most economical, smoothest, or most peaceful government," for example. Yet another metaframwork would be based upon intent: "Choose the interpretational framework that most likely matches how the framers of the Constitution meant it to be interpreted." Perhaps the framers intended that their intent be taken into consideration for interpretation; perhaps the authors intended that their intent of for particular piece of the Constitution be ignored (as Scalia would like to see). The intent of the framers for Constitutional interpretation is no doubt a difficult if not impossible thing to find, but the first step is to determine whether it even matters. Purely pragmatic or principled metaframeworks would skip the problem of determining interpretational intent altogether.

Scalia has made the case that legislative intent should not come into play in interpreting the Constitution, but he has not adequately explained why this should be so. Is it because the framers intended that intent not come into play for interpretation? Is it because such a method of interpretation is the most just? Is it because such a framework best protects individuals from abuses of the government, or because it pragmatically allows the goverment to function most efficiently? In A Matter of Interpretation, brilliant and compelling arguments have been made for several methods of going about the process of Constituational interpretation. To some extent, however, each argument lives within its own set of (often unstated) assumptions and outcome goals. Any attempt harmonize and/or choose between the various accounts will require a common language, a "metaframework" of first principles to use as a basis for discussing the various quasi-religious standpoints in interpreting America's founding text.

Notes

"Common-Law Courts in a Civil-Law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws" by Antonin Scalia

David Dudley Field was one of those who tried to quell the discretion of common-law judges by, in part, drafting the Field Code (10-11).
"(Even in the Supreme Court, I would estimate that well less than a fifth of the issues we confront are constitutional issues—and probably less than a twentieth if you exclude criminal-law cases.) By far the greatest part of what I and all federal judges do is to interpret the meaning of frederal statutes and federal agency regulations" (13-14).
"Government by unexpressed intent is similarly tyrannical. It is the law that governs, not the intent of the lawgiver. That seems to me the essence of the famous American ideal set forth in the Massachusetts constitution: A government of laws, not of men" (17). [But what happens if, as is surely the ideal, if the legislature happens to say exactly what it means? Aren't we being governed by the laws of men, then, even if we go by the text?]
The real threat of trying to follow some supposed legislative intent behind the text "is that, under the guise or even the self-delusion of pursuing unexpressed legislative intents, common-law judges will in fact pursue their own objectives and desires, extending their lawmaking proclivities from the common law to the statutory field" (17-18).
Scalia allow some leeway in interpretation in context, which the "objective import of such a statute is clear enough ... to give the totality of context precedence over a single word" (20-21).
"Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be—though better that, I suppose, than a nontextualis. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means" (23).
In most instances, regarding any specific issue in a larger statute, "[f]or a virtual certainty, the majority [of lawmakers] was blissfully unaware of the existence of the issue, much less had any preference as to how it should be resolved" (32).
"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 an even bigger issue is the distinction] between original meaning (whether derived from Framers' intent or not) and current meaning" (38).
Scalia makes a strong point about changing attitudes of liberal interpretation of the Constitution: In the early 1900's, "we believed firmly enough in a rock-solid, unchanging Constitution that we felt it necessary to adopt the Nineteenth Amendment to give women the vote." Today, he notes, it's likely that the same issue would simply be incorporated through an interpretation of Equal Protection, rather than the addition of an amendment (47).

Gordon Wood

Professor Wood claims that "[t]here was a long history behind this blurring of legislative and judicial matters" (60), but Scalia rightly retorts that this doesn't make it the correct choice (131). I would agree: In writing a computer program, one can constantly "refactor" its architecture into something much more elegantly modularized, extensible, and scalable. Similarly, in science theories are constantly refined and replaced over time to more consistently cover more and more cases, using more elegant frameworks that better address particular issues while providing more complete pictures of the whole. The evolution of the separation between legislature and judicial could be seen in the same light.

"There was a long history behind this blurring of legislative and judicial matters. Parliament had originally been called the High Court of Parliament, and the Massachusetts legislature was (and is still) called the General Court. Parliamentary statutes or enactments of the General Court of the Massachusetts Bay colony were in effect judgments of the highest court in the land" (60).

Laurence H. Tribe

Tribe claims that, while Scalia wants to interpret the entire Constitution as a set of rules to be narrowly followed, the Constitution in fact has narrow rules interspersed with general principles to be interpreted, and it's not always easy or even possible to distinguish between the two.

Laurence Tribe claims, following Dworkin, that Scalia's error is in looking at what the originators of the Constitution intended to do (i.e. the intended effects of legislation) rather than what they intended to say (67). Tribe says that in some instances the intended effect of the Constitution "is, in a sense, lost to us forever and, in another sense, not crucial. For the text they enacted was, through their action, launched upon a historic voyage of interpretation in which succeeding generations, looking at the entire text of the Constitution as amended from time to time, woudl elaborate what the text means in new ways all but certain not to remain static" (70).
Tribe notes that Justice Scalia interprets many texts to specify narrow circumstances, while Professor Dworkin finds broad moral principles within the same words. "Both of them err, I think, in the confidence of their conclusions about how various people in fact understood particular phrases a century or two ago; in their certitude about whose understanding counts as decisive; and, above all, in their insistence that they know how that historical fact bears on whether the relevant text expressed a concrete rule or an abstract principle" (72).
Tribe points out that the Constitution itself "did not comply with the amendment procedures set forth in the then-applicable Articles of Confederation ..." (75).
Tribe brings out the self-referential problems of trying to derive a method of interpreting a text from within the "four corners" of the text itself. "Even a sentence saying something like "this text is to be read with the aid of the Oxford English Dictionary" might, after all, mean something quite different from what most of those who read this essay would take such a sentence to mean—unless one assumes the very thing to be demonstrated about the rules of interpretation to be followed in deciphering the document in question" (76-77).
"The Constitution is, after all, a whole and not just a collection of unconnected parts. When an amendment becomes law under Article I, it becomes 'valid ... as part of this Constitution' and not a freestanding clause or command" (86). Tribe seems to be making a very interesting argument, here: that the addition of an amendment in effect semantically changes the entire Constitution, making a new whole with slightly different meaning than either the Constitution before the amendment and the independent amendment itself.
Justice Scalia has a hard time accepting that there can be parts of the Constitution that allow future judge-guided interpretation based upon contemporary circumstances. Tribe asks, even if the Constitution were designed to "endure for the ages" as Marshall put it, why not allow that the authors might have interspersed narrow rules along with principles meant to guide future generations for determining the underlying principles of those rules (89)? This is very compelling, and it is in line with modern practices of specification writing. Internet standards of the W3C, for instance, contain normative rules and accompanying non-normative explanatory text. Restatements from the ALI contain narrow rules accompanied by pages of examples and illustrations. Although such modularization is much more rigorous today, what's to say that the authors of the Constitution did not utilize the same technique, albeit at some less conscious and less rigorous form? "That neither of us has a formula for mechanically deciding which parts of the Constitution are purely mechanical, which parts (none, Justice Scalia might insist) state principles that we are bound to elaborate over time, and which combine both characteristics—that there may indeed exist no algorithm for such decisions—may trouble some, and may inspire others, but seems to me, in either event, our inescapable fate" (94).

Mary Ann Glendon

Glendon sets out a case that there has been such an emphasis on common law law-making that there is a deficit in American law schools in the study of the drafting of statutory law.

Ronald Dworkin

Dworkin argues that Scalia makes a mistake in trying to determine what the originators of the Constitution intended to effect by their words rather than looking at what they intended to say and interpreting those words based upon current circumstances.

Dworkin brings out that there is a "crucial distinction between what some officials intended to say in enacting the language they used, and what they intended—or expected or hoped—would be the consequence of their saying it" (116). A true textualist, says Dworkin, would be a "semantic-originalist" looking at what officials meant to say rather than an "expectation-originalist" focusing on what the official expected to happen from the legislation (120). Semantic originalism allows one to see legislation as principles to be interpreted. "Suppose some legislature enacts a law forbidding the hunting of animals that are members of 'endangered species' and then, later in its term, imposes special license requirements for hunting, among other animals, minks. We would assume that the members who voted for both provisions did not think that minks were endangered. But we would not be justified in concluding from that fact that, as a matter of law, minks were excluded from the ban even if they plainly were endangered" (121). By adhering to expectation originalism, Scalia runs into problems with the Equal Protection Clause, the text of which makes "no distinction between racial discrimination and any other form of discrimination ...", but "Scalia now reads into that language limitations that the language not only does not suggest but cannot bear" because he relies on the expectations of those who wrote it (126).

Response by Antonin Scalia

In response to Professor Wood's assertion that, as Scalia puts it, "judicial rewriting of democratically adopted texts" is historically common, Scalia says that "acknowledging evil is one thing, and embracing it is something else" (131).
"The criterion of 'legislative intent' ... positively invites the judge to impose his will; by setting him off in search of what does not exist (there is almost never any genuine legislative intent on the narrow point at issue), it reduces him to guessing that the legislature intended what was most reasonable, which ordinarily coincides with what the judge himself thinks best" (132).
Scalia is at odds with Tribe's contention that the Constitution reflects "aspirations"—for that, says Scalia, read the Declaration of Independence or the French Declaration of the Rights of Man and of the Citizen, talking about people being born and remaining free and equal. "There is no such philosophizing in our Constitution, which, unlike the Declaration of Independence and the Declaration of the Rights of Man, is a practical and pragmatic charter of government" (134). I say that's nonsense: surely one can see some principles of rights beyond a "pragmatic charter of government" lurking behind prohibitions of Congress making laws constricting freedom of the press, and ensuring rights of people to be protected from unreasonable searches and seizures.
While Tribe claims no way of determining between rule-based or aspirational interpretations, Scalia states that "documents rarely specify how they are to be construed—which does not mean that there is no right and no wrong construction. The principal determinant of meaning is context, which in this case negates an inspirational interpretation" (135). Right and wrong in terms of what, though? Who says that one should even care about the interpretations of the originators, or give it much weight? What if one were to say that a "pragmatic charter of government" should be interpreted pragmatically?
Even if Tribe were right and some parts of the Constitution are aspirational, Scalia believes that "[j]udges are not, however, naturally appropriate expositors of the aspirations of a particular age; that task can be better done by legislature or by plebiscite" (136). Really? Are elected officials really better at making long-term principled decisions separate from a political context? Isn't this a better job for an unelected judicial official appointed not swayed with the political fads of the day?
Scalia notes Tribe's argument of the Constitution as "speak[ing] across the generations, projecting a set of messages undergoing episodic revisions that reverberate backward as well as forward in time" Scalia thinks this is a "mystical construction" (141). I think it is an intriguing description of a transformation of an entire corpus by small editions, something very much in line with modern thinking in linguistics, complexity theory, and computer neural networks.