A Matter of Interpretation

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A Matter of Interpretation

Editorial Review

We are all familiar with the image of the immensely clever judge who discerns the best rule of common law for the case at hand. According to U.S. Supreme Court Justice Antonin Scalia, a judge like this can maneuver through earlier cases to achieve the desired aim--"distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal--good law." But is this common-law mindset, which is appropriate in its place, suitable also in statutory and constitutional interpretation? In a witty and trenchant essay, Justice Scalia answers this question with a resounding negative.

In exploring the neglected art of statutory interpretation, Scalia urges that judges resist the temptation to use legislative intention and legislative history. In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself. Scalia then extends this principle to constitutional law. He proposes that we abandon the notion of an everchanging Constitution and pay attention to the Constitution's original meaning. Although not subscribing to the "strict constructionism" that would prevent applying the Constitution to modern circumstances, Scalia emphatically rejects the idea that judges can properly "smuggle" in new rights or deny old rights by using the Due Process Clause, for instance. In fact, such judicial discretion might lead to the destruction of the Bill of Rights if a majority of the judges ever wished to reach that most undesirable of goals.

This essay is followed by four commentaries by Professors Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, who engage Justice Scalia's ideas about judicial interpretation from varying standpoints.

Customer Reviews:

• Avg. Customer Rating: 4.0 / 5.0
• Not as incisive or insightful as I expected
  Frankly, I was disappointed in the depth of insight and reflection offered in this book. This little volume is essentially a recapitulation of a narrow and shallow view of Constitutional Law and exegesis of the US Constitution that lacks a unifying logic or point of view that underlies it. And, I found him disingenuous in that he adopts a literalist position while knowing full well that no such position is possible in reading documents more complex and abstract than simple assembly instructions. His... more info
• boundaries of subjectivity
  My favorite part of the book is when Scalia criticizes those who bash textualism for being formalistic. "Of course, it's formalistic! Law is formalistic!," he claims.
  Beyond that, the book is more or less dull precisely because Scalia did not provide any satisfying answer to any of the non-originalist criticisms.
  One of the core criticisms raised against Scalia is that originalist interpretation can be, too, and often is, a subjective view of an individual judge. It's just a matter of how you,... more info
• A unique and fascinating foray in the controversial area of constitutional interpretation:
  This is an excellent book that provides valuable insight into understanding the modern controversy and problem of construing the American Constitution. Unique in that Justice Scalia graciously provides his theory first. He is then rebutted in different ways by university scholars in very varied manner. Each rebuttal is quite unique and interesting in its own right. Fascinating in that Scalia also provides responses to each rebuttal at the end of the book.
  The format is very educational and enlightening... more info
• Good, but...
  First of all, let me make it clear that I think Scalia is a brilliant Justice. I have a very high level of respect for him intellectually. However, I think that he is too conservative, as is this book. I still think people should read it, because I advocate hearing all sides of an argument, but I thoroughley disagree with Scalia's opinions.
  Be that as it may, everyone should sill read this insightful and interesting book, if for no other reason than the debate that takes place at the end of the book.

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