I’ve decided to take a crack at a long series of (probably) short posts on Reading Law: The Interpretation of Legal Texts, the new treatise co-authored by Justice Antonin Scalia and Bryan A. Garner. As I mentioned in my brief post last week, Seventh Circuit chief judge Frank Easterbrook hails the book as a “great event in American legal culture,” and Stanley Fish has celebrated it as “wonderful,” “compulsively readable,” and a source of “pleasure and illumination.” The book’s jacket also features hearty praise from Laurence Tribe, who calls the book “lucid, elegant, and entertaining” and “must reading.”
Scalia and Garner set forth two goals for their book. One is to refute the “notion that words can have no definite meaning” and thus “to remove a facile excuse for judicial overreaching.” The second is to provide those judges “who believe in fidelity to text … the interpretive tools necessary to that end.” Their book is “unapologetically normative” rather than descriptive: they prescribe how they believe judges ought to interpret operative legal language.
In their introduction, Scalia and Garner make their case against nontextualism generally and against purposivism specifically. As they explain, the purposivist “goes around or behind the words of the controlling text to achieve what he believes to be the provision’s purpose,” and the purposivist can define the purpose of a law at whatever level of abstraction he needs to generate the result he desires. Contrary to the charges of purposivists, textualism does not exclude consideration of purpose. Instead, under Scalia and Garner’s approach (which they label the “fair reading” method), “the purpose is to be gathered only from the text itself, consistently with the other aspects of its context” (and is therefore not remotely as manipulable as it is under the purposivist approach).
The bulk of the Scalia/Garner treatise is dedicated to setting forth 70 propositions—fundamental principles (5), semantic canons (11), syntactic canons (7), contextual canons (14), expected-meaning canons (7), government-structuring canons (3), private right canons (4), stabilizing canons (6) and falsities exposed (13).
What I propose to do is a post each weekday or so that addresses one of the Scalia/Garner propositions. (I might not address them all.) I’m not quite sure how this will turn out, but, if you’re interested, I encourage you to acquire the book and read through it along with me.