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Why Posner's criticism of Scalia and Garner is dead wrong

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Veteran appellate judge Richard Posner recently took to the pages of The New Republic to trash - there's no other word for it - the new book by Justice Antonin Scalia and writing guru Bryan Garner: Reading Law: The Interpretation of Legal Texts.

Posner's critique generated exultation on the left - after all, here was Justice Scalia getting a public smack-down from a fellow conservative! Whether Posner can still be called a conservative - he recently refused the label in an interview with NPR's Nina Tottenberg - his criticisms consistently miss the point of Scalia's and Garner's book. But, to be fair to Posner, what he lacks in the way of analytical skill, he more than makes up for in gratuitous ad hominem attacks.

Reading Law is a robust defense of "textualism," i.e., that doctrine that judges must interpret statutes (and constitutions) to give effect to the meaning that the text reasonably conveyed at the time of its adoption. In the realm of constitutional law, this is also known as the "original public meaning" theory; namely, that constitutional provisions should be applied as they were understood by the public that ratified them. Textualism does not seek to divine the "legislative intent" from the self-serving statements made in the course of "legislative history" (committee reports, floor speeches, and the like). Rather, the point of textualism is that the legislators' intent emerges from the text they adopted.

Posner takes a different view. In short, he embraces "purposivism" - the idea that judges should apply statutes so as to give effect to their overriding purpose. This method assumes that statutes have a single or dominant purpose, and that judges should be empowered to insert a purpose that is not clear from a fair reading of the text.

In his New Republic piece, Posner doesn't try to defend his interpretive philosophy. Rather, he sets up a series of caricatures of Scalia's philosophy. He begins with the straw man argument that a genuine textualist must never consult anything outside the text. Thus, although Posner agrees with Scalia and Garner that a sign outside a butcher's shop reading "No dogs or other animals" does not mean that only canines or other domestic animals are excluded, he argues that that conclusion is "not right by virtue of anything textual" but rather by virtue of the meaning that would "come into a reasonable person's mind." Talk about a false dichotomy: the very essence of textualism is applying words as they would be understood by a "reasonable person."

Textualism is straightforward, but not simple. Scalia and Garner never claim that it is always easy to read a statute, which is why they offer up 57 "canons" of interpretation. Ah ha, says Posner: they don't believe in the text, after all. Again, Posner is conjuring up a false dichotomy. The canons don't supplant the text, but they are offered as presumptions - rebuttable presumptions - "about what an intelligently produced text conveys," as the authors point out. In Posner's rather paranoid view, however, the canons "provide them with the room needed to generate the outcome that favors Justice Scalia's strongly felt views on such matters as abortion, homosexuality, illegal immigration, states' rights, the death penalty, and guns." The incoherence of this charge is stunning. If Scalia's goal is to generate "outcomes," why on earth would he embrace textualism and canons of construction designed to limit a judge's discretion? As a staunch foe of abortion, Scalia could easily re-interpret the "living" Fourteenth Amendment to prohibit abortion. Instead, Scalia favors an interpretation that would leave the issue to state legislatures, an "outcome" that would inevitably lead to legalized abortion in many Blue States.

Posner attacks Scalia for looking at the historical meaning of constitutional provisions when deciding the Second Amendment case, Heller v. District of Columbia: "Scalia is doing legislative history" he says, and therefore, once again, violating textualism. To the contrary, Scalia's opinion contains a detailed linguistic analysis to determine what the text of the Second Amendment meant at the time of its adoption (a textualist approach), he did not rely on the "legislative history" of the Second Amendment. Posner's mistake can hardly be an honest one; he knows what legislative history is. But Posner has a bee in his bonnet about Heller; he says it is "erroneous," that it is Scalia's "most heavily criticized" opinion and - here's the whopper - that Reading Law is nothing more than a response to the uproar over Heller.

The heart of Posner's review is his attempt to "prove" that Scalia and Garner have mischaracterized the cases they cite. Although this is the part of the article that most delights the left, the paucity of Posner's evidence -- six cases out of the 600 cited by the authors - rather effectively demonstrates the petty nature of the entire article. In any event, Posner completely misses the point when he argues that the authors failed to give complete summaries of the six cases. Scalia and Garner never claim that they provide exhaustive summaries of the cases. Rather, they use the cases to illustrate particular applications of textualism, not to defend or denounce the ultimate decisions reached by the courts.

Posner also pounces on the book's example of a sign that says "no person may bring a vehicle into the park." Scalia and Garner conclude that the term "vehicle" would encompass ambulances since that is the most fair reading of the text. When the authors later point out that there may be other factors that mitigate the otherwise harsh result of the sign - e.g., there may be a separate statute exempting emergency vehicles from traffic rules, or the ambulance driver may claim the common law defense of necessity - Posner denounces this as another "retreat" from textualism. But no, the authors never waver in their opinion that the best reading of the text (the sign) is that ambulances are "vehicles." But the reading of a single text may not dispose of a particular case. This is the mistake Posner makes again and again: every time Scalia and Garner mention anything other than ink on paper, he assumes that they have undermined their own thesis. Posner seems to have overlooked the fact that the book is about "reading law" not "deciding cases." It offers guidance on how to interpret legal texts; it does not purport to explain how overlapping legal texts are to be reconciled, nor how a text is to be applied to the facts of a given case.

Posner's errors have been exhaustively demolished by Ed Whelan of the Ethics in Public Policy Center (and NRO Bench Memos), and by Garner himself in a reply published in The New Republic. But Posner is unrepentant, refusing to engage Whelan on a single point of substance, instead smearing him as the head of "an extreme conservative think tank preoccupied with homosexuality (which Whelan believes is destroying the American family), abortion, embryonic stem cell research, and other affronts to conservative theology." Well, there you have it. How could a social conservative possibly say anything worthy of response?

But his attack on Whelan may do more to reveal Posner's real motivation in denouncing Reading Law than any of his substantive arguments. Posner is angry - about something. His review is dripping with vitriol: Scalia and Garner follow a "pattern of equivocation," they "omit contrary evidence," their interpretive method is "hopeless," they are disingenuous, etc. Posner, once upon a time a darling of conservatives, has recanted his conservatism, as noted above. Perhaps his estrangement from conservatism has led him to lash out at those who still stand by their principles. Whatever the reason for his latest attack, it is, alas, a sad spectacle to see a federal judge so outraged by the modest proposition that courts ought to be faithful to statutory text.

4 Comments

Scalia and Garner are right that our legal methods need fixing. Common law methods are obsolete--and textualism is part of the fix.

Posner is right about other things: originalism and pure textualism are not the fix. Purposivism is part of the fix.

Navel-gazing--fighting about which cases or which hypos said what--will not get us to the fix we need. Widening our horizons just might.

While we have been spinning our wheels for two centuries, civil law countries have been working on modern legal methods. It's about time we paid them some mind.

See Maxeiner, James R., Scalia & Garner's Reading Law: A Civil Law for the Age of Statutes? (August 18, 2012). Available at SSRN: http://ssrn.com/abstract=2132581. (It's looking for a law review home.)

This is in large part due to the fact that Posner has a bad case of oh-I'm never-gonna-make-it-to-the-supreme-court.

When a law is thousands of pages long and non-specific, leaving most of the impact to be determined after administrative and regulatory agencies have been set up, it is impossible to determine what legislative intent might be. I guess the intent is "to create an administrative agency and let them legislate. If someone has a beef with that, they can file a federal lawsuit when they think they have been damaged."

Justice Roberts' finding that the PPACA mandate represented a tax can be looked at in a lot of ways. However, he shot a bullet in the head of the thing when SCOTUS didn't allow coercion of the of the states to expand Medicaid. That in essence ended any stealth plans for a federal single payer. He even got two of the liberals to go along with him on that one. Was converting Medicaid into a default single payer over time part of the legislative intent? Who knows. But it looks like it.

If the justices had been brutally honest, they would have struck down the PPACA as being void for vagueness. Any law that long is beyond human comprehension.

Seriously, what good are textualism, originalism and purposevism when you can't even read the law?

Just being someone who understands the rules of English, leads one to side with Posner that Scalia is NOT a textualist and only sticks to the text when the text coinsides with his warpped views or at least doesn't inconvenience them. The man and his cohorts engage in pure fraud, early and often, REWRITING our liberal Constitution. Take the baseless proposition the 2nd Amendment creates an individual right, instead of being the only state right in the Constitution. Sorry, the rules of English dictate another interpretation. The initial prepositional phrase limits the whole scope of the ensuing clause, just as say the adjective red used before bears would excluded any applicability to black bears. Thus any interpretations outside the limits of a state militia are barred by the basic rules of English grammar, this also coinsides with the First Canon of Constitutional interpretation which holds any interpretation which fails to account for a single word in the Constitution must be wrong (as the great Justice Cardozo opined) as the individual right misinterpretation ignores the modifying phrase.

Another case in point is Citizens United. First,that decision embraces the well known fraud by the Court Reporter, in the Santa Clara Railroad case, who used the death of Chief Justice Waite, to ignore Waite's denial of permission to insert this baseless "fact" in the case headnotes. Thus void as a matter of law under the "fraud upon the Court" doctrine which denies every court jurisdiction to enforce the corrupt concept. Absolutely nothing in the 14th Amendment nor its history supports the idea of corporate personhood. The amendment speaks only of birth and naturalization, as being the source of the right of citizens. Neither process is applicable to corporations which come into being by being chartered, usually by states, thus giving those corps rights violates the Supremacy clause as well. Birth and naturalization are both processes exclusively limited to human beings. The 14th Amendment clearly prohibits a governmental concern as to fetuses, since they cannot have rights unlike women, btw.
The idea money is speech is a statement of pure plutocracy and Nazism, a factual absurdity. First such money goes to buy newspaper, radio, and TV ads, which are mere privileges to start. TV station all to often refuse to allow liberal speakers to buy ad time. Hitler's very rise was funded by corporations here and there, see Union Bank Corp. and federal vesting order #248. The 2nd Amendment protects content not the means used to spread the content. Money says nothing outside the context it is given so it cannot be speech as a matter of pure logic, lacking that key facet of having a basic meaning. So Scalia has never been a textualist, no conservative ever could be.

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Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

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