Scalia’s Reading Law Reflects the Rise of Formalism and the Language of Law

Mike Rappaport and I have defended the proposition that the Constitution is written in the language of the law. We recently noted in a post that much of modern originalist scholarship by academics relies on this language in interpreting provisions of the Constitution.

Another important indication of this legal turn in originalism is Reading Law: The Interpretation of Legal Texts by the late Antonin Scalia  and Bryan Garner. There they suggest that interpretation of law must be guided by canons of interpretation and offer an analysis of fifty seven such rules.  While some of these canons might be considered purely linguistic, many others are clearly legal such as the rule of lenity, the absurdity rule, and the rule that implied repeals are disfavored.

The renewed attention to legal interpretive rules also reflects the rise of legal formalism after its eclipse by legal realism. Karl Llewelyn had ridiculed the legal canons as contradictory. But, as Scalia and Garner note, many of the canons he attacked were not really canons at all.  And even if different interpretive rules sometimes point in different directions, they can still help determine meaning because the scope of their application and their weight differ depending on the circumstances. Or as Professor Geoffrey Miller of New York University Law School, who is quoted in their book, has saliently observed, “the fact that the maxims may work against each other . . . does not establish the . . . confusion posited by Llewellyn’s model. It is simply a matter of competing inferences drawn from the evidence.”

Reading Law has one important flaw.  Scalia and Garner do not identify adequate criteria for determining what is a valid canon. But it is essential to do so if we are to apply canons consistently to the Constitution. In our view, the interpretive rules for the Constitution of 1789 are those that were deemed applicable at the time. Thus, originalists must research the relevant interpretive rules in 1789 no less than they must investigate the meaning of the terms at that time.  And just as interpreters should choose the better meaning of a term, even if only slightly better than the alternative, so should interpreters likely embrace interpretive rules when the better view is that they were deemed applicable to a text like the Constitution.

Nevertheless, the book is a substantial achievement. Scalia reoriented originalism when he argued at a Heritage conference in the early 1980s that original public meaning should replace original intent. At the end of his life the great justice recognized the drift of originalism toward the language of the law.

Reader Discussion

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on September 12, 2017 at 10:06:43 am

Oh why limit oneself to such trivia as the "language of the law" when one can simply create what one wishes - or so says the retiring Judge Posner:


"Maybe that’s fitting for someone who says he has “exactly the same personality” as his cat—“Cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty.”"

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on September 12, 2017 at 15:22:00 pm

So if the interpretive rule was created in 1792, is that too late to apply it to the Bill of Rights?

I agree that the preamble cannot control the enacting part of a statute, which is expressed in clear and unambiguous terms. But if any doubt arise on the words of the enacting part, the preamble may be resorted to to explain it."—Crespigny v. Wittenoom (1792), 4 T. R. 790, at p. 793, Buller, J.

That is, are we to assume that the second amendment's preamble should be interpreted with the above rule, or the "Justice Stevens Rule" that applied in 1791?

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Edward Beal
on September 14, 2017 at 11:07:24 am

Judges do this all the time. lncluding Scalia. ESPEClALLY Scalia. And that is Posner's point.

l suspect that Posner wrote his Hively concurrence to make that point. He knew that he was out the door.

Posner's singular virtue is his honesty. l don't know if you read anything beyond Whelan, but his NY Times interview included some jaw-droppers. Remember what l told you about the real world? Posner confirmed it:

"The immediate reason for his retirement was less abstract, he said. He had become concerned with the plight of litigants who represented themselves in civil cases, often filing handwritten appeals. Their grievances were real, he said, but the legal system was treating them impatiently, dismissing their cases over technical matters.

[And some "technical matters" didn't exist. E.g., judges have been abusing the Rooker-Feldman doctrine for decades.]

“These were almost always people of poor education and often of quite low level of intelligence,” he said. “I gradually began to realize that this wasn’t right, what we were doing.”

In the Seventh Circuit, Judge Posner said, staff lawyers rather than judges assessed appeals from such litigants, and the court generally rubber-stamped the lawyers’ recommendations. ...

On the phone, Judge Posner said that opinion was a rare victory. “The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge,” he said."


Every federal judge takes the same oath: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich...." But every federal judge forgets that oath within a span of seven to ten minutes after uttering it. There is one set of rules for the rich, and another for the poor.

lt took Posner 35 years to see that that was wrong. Most federal judges never do.

To a lot of conservatives, "morality" is judges ruling the way THEY want. For me, law is about process: l trust that if the right process is followed, the constitutionally correct answer will be reached. Sometimes, it isn't the "right" answer, but that is what the amendment and legislative processes are for.

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on September 14, 2017 at 15:04:28 pm

No, I have not read much more on Posner other than commentary from both left and right.

I emphatise with Posner's concern re: poor litigants - BUT, there IS the LAW to be followed. He ought to have consigned his activities to the prescribed process - or QUIT many years ago. Alternatively, as a sitting Judge, and one with at one time a highly regarded respect, he could have taken the "bully pulpit" and lectured the Legislative Branch to correct the problem.

I simply cannot accept his "concern" overruling the Law.

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on September 14, 2017 at 17:00:27 pm

gabe: "BUT, there IS the LAW to be followed."

The point is that, all too often, judges fracture the rules to get rid of pro se cases, and the Circuits and SCOTUS rubber-stamp the trial courts' decisions. l laid that out in great detail earlier, and incorporate those remarks by reference. See esp., Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam) (stench too much for even SCOTUS).

lf the judges played by the same rules in every case, a lot of pro se cases would go to trial.

By way of example, a circuit court admitted that "Plaintiff sought declarations that the Colorado bar admission process and certain admissions rules were unconstitutional…" Smith v. Mullarkey, 67 Fed.Appx. 535, slip op. at 4 (10th Cir. Jun. 11, 2003). Now, compare that to "binding" SCOTUS precedent: "To the extent that [Plaintiffs] mounted a general challenge to the constitutionality of Rule 461(b)(3) [a D.C. bar admission rule], however, the District Court did have subject-matter jurisdiction over their complaints." District of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 482-83 (1983).

The analysis is straightforward, in both law and logic: If condition X (a state bar applicant challenges the facial constitutionality of a bar admission rule) is true, then Y (a federal district court must hear his claim, ld.,; Roe v. Ogden, 253 F.3d 1225 (10th Cir. 2001). Condition X is true (a fact the Panel admitted in the aforementioned text). Therefore, Y (a federal district court must hear that claim). But because the litigant was proceeding in propria persona, he was denied his day in court.

How much more flagrant can it get?

gabe: " He ought to have consigned his activities to the prescribed process – or QUIT many years ago."

Why didn't Scalia? He did the same damn thing, too often for me to recount. But he's your fair-haired boy ... right? You look the other way because you like the outcome.

gabe: "I simply cannot accept his “concern” overruling the Law."

l cannot abide the law being overruled by that fat piece of bile and hypocrisy known as Antonin Scalia. Posner turned state's evidence WAY too late, but at least he did.

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