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Day December 29, 2005

Book #62: Antonin Scalia, A Matter of Interpretation

A Matter of Interpretation collects together Scalia’s Tanner Lecture and comment essays by Laurence Tribe, Gordon Wood, Ronald Dworkin, and Mary Ann Glendon.  Scalia’s lecture is quite interesting, and covers both statutory and constitutional interpretation.  As  several commenters noted, Scalia’s favored methods for statutory interpretation seem quite sensible and non-controversial; I would tend to agree, for example, that legislative intent and history is largely irrelevant to what was actually enacted.  It is a different, and structural, issue if the content of enacted legislation is unknown to, or does not reflect, the intent of legislators.  But it is not an issue of interpretation.

Of course, most people reading the book come for the constitutional issues, like myself.  Here, I find myself on changing ground.  Insofar as "originalism" of any stripe involves reconstruction of past intents or "public meanings," we have an empirical problem not unlike that faced by archaeologists "reconstructing" past cultural practices.  Such interpretations are unfalsifiable almost by definition, and thus strict "originalists" face the same problem they accuse the "living constitution" folks of having:  ultimately both methods produce arguments that are made in the present by actors who vary widely in their motives, allegiences, and ideas of permissible judicial action.  To the extent that originalists rely only upon "public meaning" (the current method in vogue within originalist circles), and use only textual sources for public meaning (i.e., dictionaries, publicly available writings), the interpretive method may verge upon textualism — which is ultimately the position that Scalia describes as his own. 

Mary Ann Glendon does an excellent job in her comment describing how civil-law systems in Europe have retreated from strict textualism over the last generation, and explores their reasoning.  Ultimately, she provides an excellent rationale for a synthetic approach to constitutional interpretation, which combines textual structural analysis (of the kind that Amar’s recent book does so brilliantly for the American case) with a formalist common-law approach similiar to that common in Germany’s constitutional court.  I need to think a bit more on this, and review how this relates to both Amar’s liberal textualism and Larry Solum’s "neo-formalist" approach, but it does seem to avoid the unacknowledged unfalsifiability of originalism while not falling into the tarpit of "realist" approaches to liberal "living" constitutionalism.