“There is no controlling legal authority that says this was any violation of law,” explained Vice President Al Gore, after admitting to soliciting campaign funds from a White House phone. Yet the 1939 Hatch Act prohibits government employees from raising campaign funds on government property. So why wasn’t this a clear “violation of law”? Because “no controlling legal authority” said so.
What Gore meant by “controlling legal authority” was not a legislative act but a judicial opinion interpreting the relevant statute to determine if vice presidents were included. Unfortunately, when it comes to understanding one’s rights and privileges in this country, Vice President Gore is not alone in relying upon a judge’s ruling. Our reading of the law has become so dependent on federal court interpretations that most citizens are incapable of determining lawful activity–let alone their rights–without seeking a second opinion courtesy of a “controlling legal authority.”
Today the law itself is no longer understood as the “controlling legal authority,” and so applying the law becomes a matter of interpretation, which means a matter for courts to decide. But is this the proper role of federal courts?
A Matter of Interpretation, which comprises an essay gleaned from the Tanner Lectures delivered by Associate Justice Antonin Scalia, followed by four commentaries and a response by Scalia, provides a foray into this judicial thicket. Scalia plays true to arch-conservative form by espousing a “textual approach” to interpreting both statute and Constitution, embodying what others have called “judicial restraint.” His interlocutors offer critiques ranging from qualified acceptance to patent refutation–all the more intriguing as the lot of them hail in one way or another from Harvard Yard.
But though their contributions reflect expertise from fields as disparate as American history and European civil law, key voices are missing from the discussion. This is especially relevant given the inclusion of two judicial activists, Laurence Tribe and Ronald Dworkin, where a critical legal theorist could have offered a less superfluous critique of Scalia’s missive.
The official title of Scalia’s brief but far-ranging essay is “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws.” Divided into 11 sections, the essay begins as a critique of the common law: a set of judicial rulings that over time took the form of law in medieval England, when provincial judges acted as the king’s agents in securing justice for English subjects. These judges decided cases dealing with contracts, property, civil wrongs (or torts), and crimes using previous court rulings and general custom as precedent. While the immediate aim was to promote stability in law enforcement, the principles of right reason and common sense–presumptively associated with previous court rulings–were to guide later judges in their decisions, as opposed to statutes enacted by Parliament. Early American jurists found the elegant and systematic presentation of the common law in Sir William Blackstone’s Commentaries on the Laws of England (published 1765-69) a ready guide for state courts, with the federal courts following in the mode of common-law judges as a matter of practice, albeit not constitutional imperative.
While the federal courts never relied on the common law as precedent for deciding cases in the early republic, they acted like common-law courts by using terms, principles, and interpretive rules derived from the common law. Compared with the civil law, which emphasizes adherence to legislative enactments (i.e., statutes) and the state and federal constitutions–all written texts–the common law proceeds more from tradition, custom, and judicial pronouncements. Scalia sees the common-law mindset as anachronistic in “an age of legislation,” which by definition governs society by laws rather than the judgments of royal courts.
In short, lex rex, or the rule of law, is the operative principle of the American federal system and stands in sore need of revival as a guiding impetus of federal adjudication. Because statutory interpretation is “[b]y far the greatest part of what I and all federal judges do,” Scalia worries aloud about the extent to which “no intelligible theory” exists to interpret the laws of the land–a predicament he charges the American bar and law schools with fostering. With no “science of statutory interpretation” to instruct the courts, they adopt the “Mr. Fix-it mentality” of the common-law judges they studied as first-year law students. Herein lies “a sure recipe for incompetence and usurpation.”
The fulcrum of this discussion is the central section of Scalia’s essay, entitled “Textualism,” which he offers as the safest way to interpret both federal statutes and the Constitution. Advocating judicial restraint while disavowing strict construction, Scalia believes that judges “have no authority to pursue those broader [social] purposes or write those new laws” that “new times” would require. An outspoken defender of separation of powers, he believes justices should stick to what the legislature actually wrote instead of searching for a “legislative intent” that bears almost no relation to the final text passed into law. This means following “the original meaning of the text, not what the original draftsmen intended” nor what the judge believes they intended to accomplish in light of current needs. To be governed under a written constitution requires that all constitutional officers, including Supreme Court justices, follow the “formalism” that makes for a government of laws and not of men.
This approach contrasts starkly with “Living Constitutionalism,” which sees the Constitution as the basis of “a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society.” Scalia’s complaint? It is not legislators but “judges who determine those needs” and change the law accordingly, thereby violating separation of powers and undermining a fundamental defense against tyranny. “Judge-made law” trumps the law made by state or federal legislatures. Worst of all, proponents of an “evolving” Constitution, employing “dynamic statutory construction,” can agree on no “guiding principle of the evolution” and therefore can offer no “practicable constitutional philosophy.”
As for the commentators, Gordon Wood stands as the lone historian “among all these learned lawyers” (as he puts it). The Pulitzer Prize-winning author of The Radicalism of the American Revolution and The Creation of the American Republic, 1776-1787 agrees that modern American judges “have tended to run amok” by making rather than interpreting the law. But where Scalia faults them for adopting a common-law methodology, Wood sees the Court’s activism as the outgrowth of an independent judiciary birthed as an American innovation in the 1780s, and maturing with increasing separation from the ambit of the executive branch. The problem of judicial lawmaking, in short, is “one deeply rooted in our history, and as such it is probably not as susceptible to solution as he [Scalia] implies.” Wood concludes that textualism can scarcely be expected to reverse this long history of American legal development, and blames the turn from judicial interpretation to judicial policymaking on “the general demystification of all authority that has taken place in the twentieth century.” One can only hope that legal realists, in making the case that all adjudication is at heart judicial activism, do not take themselves too seriously and abandon entirely the notion of “disinterested jurisprudence.”
Speaking of judicial activism, Laurence Tribe responds with almost Nietzschean verve to Scalia’s defense of textualism as the safest interpretive tool of the judge: “I am doubtful that any defensible set of ultimate ‘rules’ exists. Insights and perspectives, yes; rules, no.” A Harvard law professor and author of On Reading the Constitution and Constitutional Choices (among other books), Tribe views constitutional adjudication as an “interpretive game,” wherein “the Constitution’s written text has primacy and must be deemed the ultimate point of departure” (with emphasis on the latter, Scalia will note). Scalia, Tribe argues, is holding onto a Constitution that resembles “a faded snapshot of a bygone age.” To interpret the Constitution by the lights of an earlier era is to guide oneself by the dead hand of the past: “For the text they enacted was, through their action, launched upon a historic voyage of interpretation in which succeeding generations, looking at the entire text of the Constitution as amended from time to time, would elaborate what the text means in ways all but certain not to remain static.”
Mary Ann Glendon, also a Harvard law professor, a comparative legal specialist, and author most recently of A Nation Under Lawyers, reviews the experience of civil-law judges in Western Europe to see if they have anything to offer statutorily challenged jurists in America. She faults American lawyers for neglecting “the art of legislative drafting (the other side of the coin of interpretation)” and notes that European civil-law judges possess greater familiarity with enacted law as well as “a high degree of expertise in legislative drafting.” More important, Glendon notes the shock European civil lawyers experience when they find American law courses dominated by the case method: expecting to learn about the U.S. Constitution through “a study of the language and design of the Constitution,” they find that discussion focuses on a succession of court rulings with “the Constitution itself glimpsed only in a fragmentary way.” The absence of a legal culture informed by understanding of and respect for the “text and structure” of the American Constitution has not only led to judicial lawmaking, but a society less able or desirous of exercising “the skills of self-government” requisite for the maintenance of a free community.
The final commentator, Ronald Dworkin, completes a tag-team assault on Justice Scalia’s textualism by the firm of Tribe and Dworkin, a dynamic duo of the judicial activism school. This New York University law professor and author most recently of Freedom’s Law: The Moral Reading of the American Constitution begins by distinguishing “semantic” originalism (which interprets the Constitution to “say” what the framers intended it to say) from “expectation” originalism (which focuses on the “consequences” that the framers intended said clause or amendment to have). But where Scalia thinks he’s a semantic originalist, Dworkin alleges otherwise. Scalia the semantic originalist should hold that “key constitutional provisions, as a matter of their original meaning, set out abstract principles rather than concrete or dated rules.” Instead, Dworkin believes Scalia subscribes to “dated translations” of Constitutional provisions, due to his obsession with text-driven interpretation, and hence is really an “expectation” originalist at the end of the day.
What the reader finds in Scalia’s response, and those of the commentators, is an object lesson in careful reading and analysis of arguments–a virtue too often missing in today’s contentious debates over public policies of the greatest import. The most serious criticism by Scalia is of Tribe, who “regards as irrelevant . . . the understandings of those to whom the text is promulgated.” Scalia goes on to charge Tribe with deconstructing the Constitution in search of an “aspirational interpretation” of the text. The fear can be summed up by quoting another free spirit, Friedrich Nietzsche: “the text finally disappeared under the interpretation.” For Scalia, judges must focus on the text precisely because that is all the public knows and thus can be legitimately expected to obey. Lex rex can therefore only protect against arbitrary rulers if all branches of government uphold it in their respective exercise of power.
Still, we wonder why Scalia treats the common law with such contempt. It teaches above all that justice is the aim of any court, even the highest court of the land. We too easily lose sight of this goal when we focus too intently on the procedures established to attain it. For example, Scalia treats stare decisis (the doctrine of treating similar cases similarly and hence following precedent) as an unavoidable legal fiction rather than the high-minded principle that it is, representing a concern that justice is everywhere, every time, the same for all people, and hence that courts should endeavor to reach verdicts that secure justice–a consistent and, more to the point, right result. Scalia’s respect for the written Constitution is a necessary one, but insufficient to the task of constitutional interpretation that necessarily requires one look beyond its four corners for political principles enshrined but not explicitly stated therein.
Scalia argues best when highlighting the pitfalls of judicial activism. But his deprecation of the Declaration of Independence as a document of mere “aspirations” and not as an essential part of the organic law of the United States weakens its valuable didactic role in the American regime. Furthermore, his lauding of the Bill of Rights as the bulwark of our liberties, as opposed to the structural provisions and operative principles of the original Constitution sans Bill of Rights, undermines his defense of the Constitution as “a practical and pragmatic charter of government.” Scalia’s defense of the Bill of Rights as comprising “abstract and general references to extant rights and freedoms possessed under the then-current regime,” while intended to restrain judges bent on divining new rights for a new age, instead teaches the “thoughtful American” that the protection of one’s rights follows more from their being written down than as a consequence of the prudent design and operation of the Constitution itself.
Lastly, Scalia’s “originalism” treats the Constitution like an ordinary federal statute, thereby overlooking the monumental difference between discerning the intent of a legislature and the intent of a people in establishing a written constitution in the first place. Put simply, it is not enough to preach constitutional “textualism” to American lawyers and judges who neither know nor care what the Founders intended by republican self-government.
The greatest constitutional crisis facing Americans today is not a court beholden to the common law, but one that presumes to speak conclusively on every constitutional issue. In 1985 Justice William J. Brennan, Jr., in a famous impromptu debate with Attorney General Edwin Meese III over original intent, quoted approvingly from Justice Robert Jackson: “We Justices are certainly aware that we are not final because we are infallible; we know that we are infallible only because we are final.” The authors of The Federalist Papers, in defending the Constitution’s structural checks and balances as the best means of securing the rights of all, argued against “creating a will in the community independent of the majority,” which seems to be exactly the role some of our jurists have presumed to possess.
Abraham Lincoln understood how our Constitution was designed to work and consistently argued that self-government required above all else the “selves” of the community to maintain their vigilance over each branch of government. “The people of these United States,” Lincoln argued, “are the rightful masters of both Congresses and courts not to overthrow the constitution, but to overthrow the men who pervert the constitution.” Thus to accept a Supreme Court opinion as sacrosanct simply because the Court said so was to accord them more authority than “we the people” gave to any other branch of the federal government. To say that whatever the Supreme Court decides is final would be to relinquish our right of self-government. In Lincoln’s words, “I insist that if there is ANY THING which it is the duty of the WHOLE PEOPLE to never entrust to any hands but their own, that thing is the preservation and perpetuity, of their own liberties, and institutions.”
Given the hullabaloo over the First Things symposium “The End of Democracy?” (November 1996), and Judge Robert Bork’s call to vest Congress with constitutional authority to overturn Supreme Court decisions, A Matter of Interpretation addresses perhaps the most serious political issue of our day. Nevertheless, it falls short of providing enough constitutional instruction to lead us out of the adjudicatory morass that is our current Supreme Court’s reasonings. With some Court-watchers going so far as to propose impeachment as a check against judicial encroachment upon legislative prerogatives, Scalia should be focusing on the woeful state of civic education in America–from elementary school social studies to law school–rather than attributing today’s judicial activism to the Anglo-American common-law heritage.
Lucas Morel is assistant professor of political science and history at John Brown University.
Copyright(c) 1997 by Christianity Today, Inc./Books & Culture magazine.
July/August, Vol. 3, No. 4, Page 20
7B4lm7B40207627
