April 13, 2008
Book Review: A Matter of Interpretation: Federal Courts and the Law
The cover of this book ascribes the authorship to Antonin Scalia, but it actually consists of six essays, the first and last by Scalia. The focus is the first essay by Scalia titled: Common-Law Courts in a Civil-Law System: The Role of United States Courts in Interpreting the Constitution and Laws. The essay is a pretty fascinating discussion of statutory interpretation. The first quarter of the short essay is an entertaining review of the development of common law and the function of common law in teaching law students. He writes, "What intellectual fun all of this is! It explains why first-year law school is so exhilarating: because it consists of playing common-law judge, which in turn consists of playing king - devising, out of the brilliance of one's own mind, those laws that ought to govern mankind." But along came democracy. Legislatures chosen by the people as a whole make the laws. Judges interpret them. "It is simply not compatible with democratic theory that laws mean whatever they ought to mean and that unelected judges decide what that is."
As to statutory interpretation, he begins, "We American judges have no intelligible theory of what we do most." He discusses the "Intent of the Legislature" analysis, concluding "it is the law that governs, not the intent of the lawgiver." He goes on to discuss textualism, canons and presumptions, and legislative history as tools to interpret statutes pointing out the limits of each, especially the latter.
The essay ends with a criticism, as you can imagine, of the followers of the "Living Constitution" theory. The analysis of the constitution, he writes, tends to be an analysis not of what the constitution says but what the Supreme Court has said over the years about the particular issue at hand. This leads to an extension or modification of previous cases "with no regard for how far that logic, thus extended, has distanced us from the original text and understanding." Nor do the Living Constitution advocates simply follow the will of the American people. According to Scalia, "They follow nothing so precise; indeed as a group they follow nothing at all." He concludes that the concept of the Living Constitution has led to the phenomena of government choosing judges who will interpret the laws and the constitution the way the choosers of judges want it interpreted. In his usual understated way, he ends with, "This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority."
The remainder of the book is not near as compelling as the first essay. The remainder consists of four responses to Justice Scalia and then a short response from him. This book however should be required reading for every law student.
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I would agree this book should be required reading for every law student.
But why a book review so late? Scalia published this book quite some time ago.
Posted by: Jake | Apr 15, 2008 4:53:18 PM