Associate Justice Antonin Scalia’s Textualism Theory of Legal Interpretation Is Challenged

A prior post about interpretation of the U.S. Constitution’s provision about interstate commerce discussed a new book by Supreme Court Associate Justice Antonin Scalia and Bryan A. Garner: Reading Law: The Interpretation of Legal Texts.

A glowing review of this book is provided by Stanley Fish, a professor of humanities and law at Florida International University.

Fish says the book “is compulsively readable. Scalia and Garner have a talent for making complicated and sometimes arcane points of doctrine seem accessible and even plain. The argument is carried by analyses of innumerable cases, each of which is used to elaborate and illustrate a particular canon. The economy with which the cases are presented and explicated is remarkable. The reader is at once entertained -humorous asides abound – and initiated into the rigorous yet often wacky world of the law. The authors follow Horace’s injunction to both teach and delight. In short, this is a wonderful book.”

On the other hand, Fish says the book is wrong in its “thesis that textualism is the one mode of legal interpretation that avoids subjectivity and the intrusion into the judicial realm of naked political preferences. ” According to Scalia and Garner, “‘Textualism,’ begins and ends with what the text says and fairly implies.” Textualists proceed “on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.” We are textualists, Scalia and Garner announce, which means that we “ascribe to the text the meaning that it has borne from its inception, and reject speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s consequences.”

As part of their argument for textualism, Scalia and Garner attack one of the competing theories of interpretation of legal texts: intentionalism or purposivim. According to Scalia and Garner, the purposivist is someone who “goes around or behind the words of the controlling text to what he believes to be the provision’s purpose.” That is, the purposivist substitutes for the objective materiality of the text the subjective will-o’-the wisp of purpose or intention, and unconstrained by the text he is free to “‘fill in’ or change the text according to [the purpose] he has chosen.”

Fish strenuously disagrees. He says the text itself will not tell the reader what the purposive context is. “The specification of purpose is what stabilizes a text and a text’s purpose is not self-evident; you can’t simply extract it from the text, and without its having been assumed or presupposed, the text will not settle down. Intention/purpose comes first, texts and meanings follow.”

This discussion reminds me of a question that has been kicking around in the back of my mind.

The U.S. Constitution has the following statement of its purposes in its Preamble:

  • We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Although I studied constitutional law in law school nearly 50 years ago and was a lawyer in several constitutional lawsuits and have read a lot about U.S. constitutional history, I do not know of any Supreme Court cases or secondary sources that refer to the provisions of the Preamble in analyzing constitutional issues. If anyone knows of any such cases or sources, please write a comment to this post identifying such materials.

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As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

4 thoughts on “Associate Justice Antonin Scalia’s Textualism Theory of Legal Interpretation Is Challenged”

  1. Comment: Justice Scalia and Bryan Garner Interviewed on TV

    The subjects of the July 18th edition of the CNN television program “Piers Morgan Tonight” were U.S. Supreme Court Justice Antonin Scalia and Bryan Garner, the co-authors of Reading the Law: The Interpretation of Legal Texts. Although not questioned about the critique of the textualism theory of legal interpretation, Scalia did make many interesting comments about the Court and legal issues.

    The following article about the interview contains TV excerpts: Mears, Scalia dismisses talk of internal court rancor (July 19, 2012),

  2. dwk makes an intersting point re the Preamble. I also am a lawyer and have never seen it cited in legal cases or briefs, but many history books discuss it. For example, Catherine Drinker Bowen in her “Miracle at Phildelphia” briefly discusses the various views of how the drafting committee at the constitutional convention viewed the preamble.

    1. Tom, thanks for your comment. Let me know if you come across any U.S. Supreme Court opinion that uses the Preamble to help in interpreting the Constitution of any legal brief that does so.

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