A Matter of Interpretation: Federal Courts and the Law (The University Center for Human Values Series) |  | Author: Antonin Scalia
Creator: Amy Gutmann
Publisher: Princeton University Press
Category: Book
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Rating:  37 reviews
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Media: Paperback
Pages: 176
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Dimensions (in): 9.2 x 6.1 x 0.6
ISBN: 0691004005
Dewey Decimal Number: 340
EAN: 9780691004006
ASIN: 0691004005
Publication Date: July 27, 1998
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Product Description
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.
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Showing reviews 1-5 of 37
 A model for all apologetics! March 28, 2005
Michael Heath (North Woods of Michigan)
13 out of 14 found this review helpful
I loved the format of the book! Scalia presents his judicial interpretative process, and honestly admits hypocrisy when he occasionally votes ideology rather than using his system. Then, rather than providing a half-hearted attack on his ideological opponents, he invites them to respond to his thesis, each with their own chapter!
You may not agree with Scalia, but you can't doubt his moral courage based on his invitation for criticism in his own book.
I also appreciated the chapter on the structure of Germany's Constitution to help us understand why principle, rather than statue, plays such a big role in American judicial interpretative processes.
Everyone that cares about the Supreme Court should read this book. I have yet to find a better book to learn the motivations and processes utilized by each ideological camp. After reading this book, my ability to understand the logic of the court, for both rulings and the opinions, has been greatly enhanced.
While unintended, Scalia also helped cement my personal belief that a blend of original meaning (aka textualism) and abstract principalism, and not Scalia's textualist approach alone, is by far the optimal method for judicial interpretation based on our Constitution.
Scalia believes that in a democratic society change should not come from judicial decrees, but from the people's representatives January 16, 2009
Michael A Neulander (VA)
3 out of 3 found this review helpful
I read this book for a class on the philosophy of law. In his book "A Matter of Interpretation," Associate Justice Antonin Scalia describes his judicial philosophy as that of being a "textualist." For Scalia, textualism means that a judge is bound by interpreting the law without regard for the intent of the lawmakers. "Men may intend what they will; but it is only the laws that they enact which bind us" (17). Justice Scalia is one of the most vociferous opponents of the use of constitutional comparativism by judges to help influence or guide them to a certain interpretation of the law. Scalia, on the spectrum line of judicial philosophy, is a self-described "textualist." His idea of textualism is that, "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). Textualism is a constitutional philosophy of original meaning, instead of original intent, as a "strict constructionist" would interpret the text. In addition, Scalia believes that, "It is the law that governs, not the intent of the lawgiver....A government of laws, not of men" (17).
Scalia believes that in a democratic society, change should not come from judicial decrees, but from the people's elected representatives. Thus, one can instantly see that Scalia's views bring him in direct opposition to Justice Ginsburg's "living constitution" philosophy, which at its core embraces constitutional comparativism, and gives judges virtual carte blanche to pen new laws from the bench.
Scalia has vehemently denounced judges who have resorted to constitutional comparativism in their written opinions when adjudicating cases before them. Scalia argues that the only time a judge should refer to foreign law in interpreting a nation's constitution is when she is settling a case dealing with treaty obligations with foreign nations. In every instance where one of his colleagues resorts to the practice of including opinions from foreign court rulings, Scalia has made it a point to take umbrage against this practice in his own written opinions. Most of the instances where Supreme Court Justices have used constitutional comparativism have occurred when they have ruled on cases involving death penalty issues, cases involving the War on Terrorism, and privacy cases dealing with abortion or homosexuality.
Scalia is skeptical of the methodology used by judges who include foreign law in their adjudication process. Specifically, he wonders if judges dabble with constitutional comparativism on a selective basis, only when it fits with their ideas of how the case should be ultimately adjudicated. As an example, Scalia notices that when the court hears arguments about the death penalty or abortion, he observes that his colleagues do not cite decisions or statistics from courts in socially conservative countries in South America, East Asia, or Islamic countries. Thus, he finds that his colleagues are being a bit disingenuous when they "cherry pick" opinions from foreign nations, especially European, and try to use them as examples of how there is a change in the world's social mores that should be considered when adjudicating cases.
Even Justice Breyer agreed that Scalia's point on his and other Justices not citing cases from non-European nations is a fair criticism of their methodology.
Another argument Scalia uses against judges relying on constitutional comparativism, is that the judge is probably not fully conversant on the surrounding history and jurisprudence involved in a particular foreign ruling. An example Scalia uses is the question of whether it is "cruel and unusual" punishment to have a condemned to death prisoner waiting over twelve years, as many American death row inmates do, before her sentence is carried out. The U.S. Supreme Court has not taken up this question; however, Scalia and Breyer see it looming on the court's horizon. Scalia argues that if one looks at foreign case law in Britain before they abolished the death penalty, it would show that the penalty was carried out within two weeks of its pronouncement in court. Many legal professionals in the U.S. point to this and argue that the prolonged period between sentence and execution should be considered "cruel and unusual" punishment. However, Scalia argues that the reason the length of time is prolonged in the U.S. is because of the system of jurisprudence it labors under to ensure a liberal appeals process for condemned prisoners. The reason why the U.S. allows a death row inmate multiple avenues for appeal is as a safeguard against a wrongly condemned prisoner from being put to death. This type of liberal appeals process was not in place in Britain before its courts abolished the death penalty or in other European countries that did the same. Therefore, Scalia makes an important point when he states that judges who want to use constitutional comparativism often times do not take into account the history and judicial background of a particular ruling from foreign courts when using these court's decisions in helping to form their own opinions of a case before them.
Another argument Scalia makes against constitutional comparativism deals more with his own judicial philosophy. As a textualist and a positivist, he does not think that a judge who has the power of judicial review of her nation's laws should be in the business of making moral rulings for her society from the bench, a practice that effectively circumnavigates her nation's legislative branch. In addition, part of what makes Scalia a positivist, is that he believes in the importance of the rule of law. One of the guiding tenants of a nation that adopts the principle that the rule of law is an important foundational precept in their society, is the idea that citizens must not be subjected to ex post facto laws. Essentially, an ex post facto law means that a government body enacts a new law to make an act illegal, and this law is then applied to an agent who committed the "illegal" act before the new law was enacted. Scalia argues that rulings made by judges who are natural law theorist proponents become ex post facto laws for the people before the court, and if judges do this routinely, it would make life for citizens in such a society intolerable.
Finally, like Montesquieu, who was the first person to advocate in his writings for the separation of the judiciary from both the executive and legislative branches of government, Scalia is also a staunch supporter of the separation of powers system of government. Therefore, Scalia does not think it is the prerogative of judges interpreting their nation's constitution or law code to make perceived necessary changes to keep up with changing social values. Scalia believes that in a democratic society, the people are sovereign and thus a nation's constitution and law code should be changed by the people's elected representatives and not by appointed judges. Scalia is not against citizens changing their Constitution or laws, "... the Constitution should keep up to date--but it should keep up to date with the views of the American people." Thus, Scalia argues that judges in a nation who have judicial review powers are only entitled to review the texts of laws enacted by a nation's governing body to ensure their proper application by governmental agencies and its citizens. When it comes to keeping up with societal changes, Scalia believes it is up to the elected representatives to make the necessary changes. "You can have arguments on one side and on the other, but what you have to ask yourself is what does American society think? And the best way, the only way to determine that is certainly not to ask a very thin segment of American society -- judges, lawyers and law students -- what they think but rather to look at the legislation that exists in states, democratically adopted by the American people.
Legal tour de force December 9, 2001
Kenneth E. Wagner Jr. (Highland Springs, VA United States)
5 out of 6 found this review helpful
This book is a real treat for anyone who loves legal (constitutional that is) thought. It would also make a great introduction into what several of the greatest thinkers in the Anglo-American legal profession think. The book is mainly a lecture by Scalia where he lays out his theory of 'textualism,' that is closely grounding constitutional interpretation to the original meaning of the words of the constitutional (or statutory) text. It is a spirited explanation of the theory and includes defenses against some of the more common attacks on the theory. But the book gets better. Four legal experts, Laruence Tribe, Ronald Dworkin, a historian and Glendon all give their comments on textualism. Scalia then replies to these comments at the end. A wonderful look into debate between five incredible minds who often diasgree.
Dishonest and power-crazed judges are the issue March 7, 2007
Brian L (Arizona)
5 out of 6 found this review helpful
This book was not exactly what I expected; it was better. It contains an essay by Justice Scalia about the judicial role in deciding statutory and constitutional questions. His essay is followed by comments by other individuals which, in turn, is followed by Justice Scalia's response. The most fascinating part of the entire book was the recognition by the writers that judges have taken it upon themselves to legislate and decide what government policy "ought to be" in rendering judicial decisions. Some of the writers seem to think this is acceptable and expected. To an attorney who has watched courts reach intellectually dishonest decisions in cases where there is potential economic or political impact (for example, one appellate court went so far as to render an unpublished opinion in one case -- apparently to conceal its dishonesty in letting a state divert millions of dollars from a state retirement plan -- then followed up a few months later with a published opinion by the same judges with a precisely opposite holding on an important legal question decided in the first case), the concerns expressed by Justice Scalia were more than theoretical. While our legislators may not be the sharpest knives in the drawer, at least voters can remove them from office or persuade them to change their minds. There is no such opportunity with unelected judges who not only can manipulate facts and law in their rulings, but can issue decisions that never see the light of day and thus escape public scrutiny. Both liberals and conservatives have plenty to fear from judges who believe that they are a law unto themsleves.
Keep Reading Books by Sitting Supreme Court Justices May 3, 2006
Steve Booth-Butterfield (Morgantown, WV USA)
8 out of 11 found this review helpful
I think that it is good to read widely and get divergent perspectives. Thus, Christians and Jews should read the Quran and Muslims should read the Torah and the New Testament. Conservatives should read the Nation or the New Republic and visit the DailyKos website and liberals should read the Weekly Standard or National Review and visit RealClearPolitics. The same perspective applies with Breyer's book. Regardless of your perspective, you should read this brief and easily understandable statement of judicial philosophy from a sitting Supreme Court justice. (And, it would also be good to read the counterpoint from Justice Breyer for the same reasons.)
I find this book to be a more interesting and powerful presentation than the recent book by Justice Breyer. In Breyer's book we read just his perspective and much of it is a response to this book by Scalia. In Scalia's book we are given Scalia's approach to judging and then we are given critical responses to that approach by several different authors, not all judges themselves. It is clear that Scalia likes the clash of argument and finds great benefit in that clash.
This book is brief and extremely well written so that even someone untrained in law can still easily follow the arguments and counterarguments. Anyone interested in our Supreme Court would find this book (and Breyer's) to be extremely useful and enlightening.
For myself, I found that reading both books left me believing that while both Justices approach the world in different ways, we are in good hands. Given the incredibly politicization of the Supreme Court, I found these books to be reassuring of the intelligence, character, and skill of these two Justices.
Showing reviews 1-5 of 37
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