Judge Richard Posner Critiques Justice Scalia’s Textual Originalism Theory of Interpreting Legal Documents

A prior post has discussed the new book by U.S. Supreme Court Associate Justice Antonin Scalia and Bryan A. Garner – Reading Law: The Interpretation of Legal Texts. It discusses principles or canons of statutory and constitutional construction, including the Justice’s frequently proclaimed theory or canon: “Words must be given the meaning they had when the text was adopted.” Moreover, for Justice Scalia, as he writes in the book and in many judicial opinions, it is the words of the text under consideration that must be at the center of legal inquiry. Other sources and values — the intentions of those who wrote the words or the consequences of a given interpretation — are, in his opinion, illegitimate.[1]

Posner’s Criticism

Now Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit and a Senior Lecturer at the University of Chicago Law School (my alma mater), pens a blistering criticism of this theory and the book under the title “The Incoherence of Antonin Scalia.”

According to Posner, Scalia is the defender of the purported passive judicial role. Such judges and defenders say that all such judges do “when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them. They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.”

Such a claim, says Posner, is nonsense. It does not effectuate legislative intent. Instead it “hobbles legislation.” As Posner sees it, a “legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text.” All legislatures have understandable “limitations of foresight,” and “the fact that a statute is a collective product . . .  often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers.”

Moreover, Posner says, “The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke ‘motivated thinking,’ the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.”

Posner endorses the views of Frank Easterbrook, his fellow Seventh Circuit and University of Chicago Law School colleague. Easterbrook says, in the forward to the Scalia and Garner book no less,“Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption under-stood those words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably.”

When that happens, Easterbrook continues, the courts should “declare that meaning has been lost, so that the living political community must choose.” In those circumstances, Easterbook adds, “the justification for judges’ having the last word evaporates.” This is a version of the doctrine of judicial self-restraint.

Posner also has a detailed exposition of inconsistencies and errors in the analysis of Scalia and Garner.

Retort to Posner’s Criticism

Posner’s criticism was immediately attacked by Ed Whelan (Martin Edward Whelan, III), a former Scalia law clerk, an attorney and the President of the Ethics and Public Policy Center, in a post to the National Review Online entitled “Richard A. Posner’s Badly Confused Attack on Scalia/Garner.”

He asserts that Posner’s analysis “is remarkably slipshod and untrustworthy.”

In this post he has three major points.

• First, he believes that Posner “misunderstands the relationship between Scalia and Garner’s defense of original-meaning textualism, on the one hand, and their elaboration of interpretive canons, and of selected cases applying particular canons, on the other.”
• Second, “Posner’s broader attack on textual originalism . . . is replete with errors and distortions.” According to Whelan, Scalia and Garner, for example, clearly recognize and endorse the use of legislative history for the purpose of establishing linguistic usage.
• Third, Posner criticized Scalia and Garner’s emphasis on using dictionaries in construing legal texts, but, says Whelan, Posner fails to take into account Scalia and Garner’s appendix titled “A Note on the Use of Dictionaries.” There they point out the dangers in “an uncritical approach to dictionaries” and enunciate“primary principles to remember in using dictionaries.”

Conclusion

This does not really end the discussion. Whelan promises additional posts in his criticism of Posner. I am also sure we have not heard the last from Judge Posner on these issues.