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.
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.”
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.
 Another post and two comments thereto examined other reviews of the Scalia and Bryan book.
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.
By the end of June the U.S. Supreme Court should issue its decisions on the constitutionality of the federal Affordable Health Care Act and the Arizona immigration law. These cases involve important issues requiring the interpretation of the U.S. Constitution.
These cases and recent commentaries by Supreme Court Justice Antonin Scalia, columnist George Will, two judges on the U.S. Court of Appeals for the D.C. Circuit and a law professor reveal another important issue of legitimate federal power that is bubbling below the surface: what should be the constitutional standard for review of federal and state regulation of economic activities under the Fifth and Fourteenth Amendments to the U.S. Constitution.
U.S. Supreme Court Justice Antonin Scalia
A new book— Reading Law: The Interpretation of Legal Texts –by U.S. Supreme Court Justice Antonin Scalia and Bryan A. Garner discusses the general approach to such interpretation used by the Justice. It comes with this disclaimer: “The views expressed in this book are those of the authors as legal commentators. Nothing in this book prejudges any case that might come before the [U.S.] Supreme Court.”
The book is a series of short essays on principles or canons of statutory and constitutional construction that supposedly guide judges and lawyers. The book, however, does make telling comments on issues in the pending health care and immigration cases.
One of the central precedents advanced by the Obama Administration for the constitutional validity of the Affordable Care Act is a 1942 Supreme Court case, Wickard v. Filburn, 317 U.S. 111 (1942), which held that a farmer’s cultivation of wheat for his own consumption affected interstate commerce and, therefore, could be regulated by the federal government under the Commerce Clause of the U.S. Constitution that grants (in Article 1, Section 8) Congress the power “To regulate Commerce . . . among the several States. . . .” The new Scalia-Garner book, however, says the Court in the Wickard case “expanded the Commerce Clause beyond all reason.”
Another canon says that “a federal statute is presumed to supplement rather than displace state law.” In other words, Congress must make express any intent to displace or preempt state law. This relates to the pending case about the Arizona immigration law. The main argument for its unconstitutionality is preemption of state law regarding immigration by federal law.
The book also says, “A statute presumptively has no extraterritorial application.” Again this is a presumption and thus requires Congress to make explicit any intention for a statute to have extraterritorial application. This relates to a case to be reargued next term on whether the federal Alien Tort Statute of 1789 applies to alleged foreign human rights violations. A related issue is whether corporations may be held liable under that statute.
Another canon is “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.
Columnist George Will
George Will in his recent column, “Unleash the high court” lambasts a recurrent theme in many Supreme Court cases that express deference to the choices of the democratically-elected legislative and executive branches. Similarly Mr. Will criticizes George Romney’s presidential campaign website for saying that federal judges should “leave the governance of the nation to elected representatives.” Will argues that “judicial deference to elected representatives can be dereliction of judicial duty.”
Will specifically targets the Supreme Court’s decision in the Slaughterhouse Cases, 16 Wallace 36 (1873), regarding the “privileges or immunities” clause of Section 1 of the 14th amendment to the U.S. Constitution that was ratified in 1868. That provision is as follows:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.)
At issue in the Slaughterhouse Cases was whether a Louisiana statute that granted one firm a monopoly of the slaughterhouse business in New Orleans and banned already established competitors was valid under the “privileges or immunities” clause, and the Court held, 5 to 4, that it was constitutional.
The Court in the Slaughterhouse Cases reached this conclusion after it had determined that there was a distinction between U.S. citizenship and state citizenship and that this clause of the 14th Amendment only protected the former. Such U.S. citizenship privileges or immunities, according to the Court in this case, included the right of a citizen “to come to the seat of the government to assert any claim he may have upon that government;” the “right of free access to its seaports;” and the right “to demand the care and protection of the Federal government over his life, liberty, and property on the high seas, or within the jurisdiction of a foreign government.” But they did not include the right to engage in a business.
The Slaughterhouse Cases also rejected the claims that the Louisiana statute violated the “due process” clause and the “equal protection” clauses of the 14th amendment.
According to George Will, the decision in the Slaughterhouse Cases was a “still-reverberating mistake . . . [by taking] a cramped view of the 14th Amendment’s protection of Americans’ “privileges or immunities,” saying these did not include private property rights, freedom of contract and freedom from arbitrary government interference with the right to engage in enterprise.” This led, he says, in the 1930s to the Court’s formally declaring economic rights to be inferior to ‘fundamental’ rights. As a result, according to Will, the Slaughterhouse Cases “begot pernicious judicial restraint — tolerance of capricious government abridgements of economic liberty.”
Circuit Judges Brown and Santelle
George Will’s call for “unleashing” the Supreme Court was made more explicit in an astonishing concurring opinion in April of this year by two judges on the U.S. Court of Appeals for the D.C. Circuit–Judge Janice Rogers Brown and Chief Judge David Bryan Sentelle— in Hettinga v. United States.
In that case the appellate court, 3-0, affirmed the dismissal of a complaint alleging that a federal statute subjecting large milk producers-handlers to financial contributions to a fund for payments to producers violated the Fifth Amendment to the Constitution’s due process and implied equal protection provisions. Following Supreme Court precedents, as the circuit court was required to do, the latter’s per curiam opinion stated the governing legal principle as follows:
“We grant statutes involving economic policy a “strong presumption of validity.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993). A statutory classification that “neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at 313. “Where there are plausible reasons for Congress’ action, our inquiry is at an end.” Id. at 313–14. The challenger bears the burden of showing that the statute is not a rational means of advancing a legitimate government purpose. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).”
The appellate court then found that the challenged federal statute did have the requisite rational basis and, therefore, was constitutional.
The concurring opinion that was authored by Judge Brown and joined by Chief Judge Sentelle said that no other result was possible in light of the Supreme Court precedents. They then went on to suggest that the Supreme Court should overturn its large body of cases holding that economic regulations were subject to a rational basis test and return to the Lochner-era when there was strict judicial scrutiny of such regulations. The concurring opinion said:
“America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.”
“First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.
“As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are “within legislative power”—would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction.” 291 U.S. at 523. In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4. . . .”
“The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).
“The hope of correction at the ballot box is purely illusory. . . . Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.”
The third circuit judge on the panel in Hettinga, Judge Thomas B. Griffith, filed his own concurring opinion to announce that he did not join the concurring opinion of Judge Brown and Chief Judge Sentelle “with its spirited criticism of the Supreme Court’s long-standing approach to claims of economic liberty. Although by no means unsympathetic to their criticism nor critical of their choice to express their perspective, I am reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.” (Emphasis added.)
As of the close of business on June 19th, the Supreme Court website did not report the filing of a petition for certiorari in the Hettinga case. But keep watching for such a petition and for the Court’s ruling thereon. If it grants the petition, be on guard.
Supreme Court Interpretation of Constitutional Restraints of Federal and State Economic Regulations
Will’s article and, to a lesser extent, the Brown and Sentelle concurring opinion jump over an important period of our constitutional history.
Starting in 1905 in the U.S. Supreme Court used the “due process” clause of the 14th amendment to invalidate numerous state statutes regulating various aspects of economic activity. An early leading example of this jurisprudence was Lochner v. New York, 198 U.S. 45 (1905), that held a New York statute limiting the hours of labor in bakeshops to be unconstitutional. This approach continued into the early 1930s when the Court held various New Deal statutes unconstitutional until the conflict between the Court and President Roosevelt’s New Deal legislation reached a head in early 1937 with a presidential proposal for reorganizing the federal judiciary by appointing additional judges when an incumbent reached his 70th birthday (the so-called “Court-packing” proposal).
This proposal never went anywhere, but the Court suddenly changed course by upholding various federal and state economic regulations. This was the so-called “switch in time that saved nine.” Important cases in this reversal of course by the Supreme Court were West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) and United States v. Caroline Products Co., 304 U.S. 144 (1938). In West Coast Hotel, the Court, 5 to 4, upheld a state minimum wage law and overruled a contrary decision from 1923 (Adkins v. Children’s Hospital of D.C., 261 U.S. 525 (1923)). In Caroline Products, it upheld the constitutionality of a federal statute prohibiting certain milk from being shipped in interstate commerce because it was supported by substantial public-health evidence and was not arbitrary or irrational. The latter case also explained that regulations of economic activity would be subject to a “rational basis” review while restrictions on more fundamental rights would be subject to a higher level of scrutiny. Presumably George Will was referring to Caroline Products as the 1930s decision that, in his opinion, dastardly relegated economic rights to an inferior position to fundamental rights.
Another case in this new Supreme Court direction was Palko v. Connecticut, 302 U.S. 329 (1937), although it did not involve economic rights. Instead this case held that a state statute permitting the prosecution to take appeals from lower courts in criminal cases did not violate the 14th Amendment. This conclusion followed from the Court’s decision that this Amendment did not protect all of the rights set forth in the first eight amendments to the U.S. Constitution, but only to those “implicit in the concept of ordered liberty” and those principles of justice “so rooted in the traditions and conscience of our people to be ranked as fundamental.”
Also important in the Court’s new direction was the previously discussed Wickard v. Filburn, 317 U.S. 111 (1942), which upheld a federal statute establishing a wheat-marketing quota system that included wheat consumed on the same farm. It thereby repudiated an old distinction in the law between direct and indirect effects on interstate commerce. This case–the one criticized by Justice Scalia–made it clear that the Court would uphold the federal regulation of any economic activity, no matter how local, if it could have a demonstrable effect on interstate commerce.
This interpretation of the 14th Amendment as applied to economic regulations has now been followed for roughly 75 years in a huge body of cases in the Supreme Court and other U.S. courts.
As discussed in a prior post, in the mid-1970s I relied upon this well established body of law in a successful defense of an acquisition of an Iowa bank by an out-of-state bank holding company at about the same time that the Supreme Court upheld the constitutionality of a New Orleans ordinance that only allowed two push-cart vendors in the French Quarter of that city.
Given this long-established and firmly embedded interpretation of the Constitution, I was astounded to discover the George Will column and the concurring opinion in Hettinga calling for obliteration of this large body of law. I also was startled to read a commentary by David Bernstein, the George Mason University Foundation Professor at the George Mason University School of Law:”There is virtual unanimity among modern conservative and libertarian scholars that the broadening of federal power during the New Deal era resulted from mistaken Supreme Court decisions.”
Such a position seems to me to be contrary to the principle of starie decisis. As stated by Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago (my alma mater), “Stare decisis is, after all, the bedrock principle of the rule of law. Not only does it promote stability and encourage judges to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.”
Indeed, in the infamous Citizens United v. Federal Election Commission case from 2010 that overruled a prior Supreme Court case regarding election financing, Chief Justice Roberts submitted a concurring opinion that was joined by Justice Samuel Alito solely “to address the important principles of judicial restraint and stare decisis implicated in this case.” After this concurring opinion reviewed the reasons for starie decisis, it quoted earlier Supreme Court decisions that said the principle was not an “inexorable command” or a “mechanical formula of adherence to the latest decision.” Otherwise, Chief Justice Roberts (and Justice Alito) said, “minimum wage laws would be unconstitutional.” Here, Chief Justice Roberts cited with approval West Coast Hotel Co. v. Parrish’s overruling of Adkins v. Children’s Hospital of D.C.
Presumably that would at least make it more difficult for Roberts and Alito now to overrule 75 years of Supreme Court case law on the constitutionality of economic regulations and to hold, explicitly or implicitly, that West Coast Hotel was an erroneous decision.
I, therefore, was somewhat relieved to read Professor Bernstein’s further observation that “there is less unanimity on what to do about it [the belief by some legal scholars that the rational basis standard for review of economic regulations was erroneous]. One school of thought, represented by former Judge Robert Bork and Judge Ralph Winter of the U.S. Court of Appeals for the Second Court, says it is too late to rely on the judiciary to reverse the centralizing trend of modern government. Winter claims that the unraveling of the modern Leviathan must be done through the political process, because it would be too disruptive to society and to the economy for judges to strike down federal programs wholesale. And, because judges must act on principle, they cannot pick and choose which laws to declare unconstitutional. Richard Epstein argues that, at least on the margins, the Supreme Court can still restrain national economic regulation. He thinks “that it is possible to make incremental changes by principled adjudication.”
In a subsequent post I will review other theories of interpreting the Constitution.In the meantime, I invite comments correcting, amplifying or contesting the assertions in this post.