Review: A Matter of Interpretation

A Matter of Interpretation
A Matter of Interpretation: Federal Courts and the Law
Antonin Scalia
Princeton: Princeton University Press, 1997

Review Copyright © 2003 Garret Wilson — 18 April 2003 3:00pm

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.


"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

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.

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.

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.

Response by Antonin Scalia