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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.

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