Saturday, June 30, 2012
Justice Antonin Scalia and legal writing expert Bryan Garner have written a new book, Reading Law: The Interpretation of Legal Texts. Unlike their previous book, Making Your Case, Reading Law does not focus on legal writing. But this new 567-page volume may interest readers of this blog because it covers legal analysis, albeit from a specific viewpoint, textualism, which the authors define as follows:
We look for meaning in the governing text, ascribe to that text the meaning that it has borne since its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of a fair reading’s anticipated consequences.
The book contains a clue about the recent health care decision. Scalia and Garner write that a 1942 case, Wickard v. Filburn, “expanded the Commerce Clause beyond all reason.” Both the majority and dissenting opinions in the health care case rejected that expansive view of the Commerce Clause.