Bench Memos

Akhil Amar’s “Mangling” of Scalia/Garner Book—Part 1

In the journal Democracy, Yale law professor Akhil Reed Amar reviews Reading Law: The Interpretation of Legal Texts, the new treatise co-authored by Justice Antonin Scalia and Bryan A. Garner. The subtitle* of Amar’s review declares that the Scalia/Garner book “is very sure of itself—in fact, far too much so.” That criticism in fact better applies to Amar’s own review.

Amar’s primary claim in his review—one that consumes more than half its pages—is that Scalia and Garner have “badly misstated the matter” of the “absurdity doctrine” by offering a “reading of Blackstone [that] is flatly erroneous.” For Amar, their supposed “misstat[ement of] the venerable Blackstonian doctrine of absurdity”—indeed, their “mangling of some of Blackstone’s most notable passages”—“raises questions about the general reliability of Reading Law as a work of sound scholarship.”

Unfortunately, it is Amar who mangles his reading of what Scalia and Garner have to say on the absurdity doctrine. Contrary to what Amar maintains, in setting forth their “two limiting conditions” on the use of the absurdity doctrine (p. 237), Scalia and Garner do not purport to be stating or construing Blackstone. Their sole citation to Blackstone in their six pages on the absurdity doctrine comes three pages earlier (p. 234), in their opening paragraph, where they approvingly quote Blackstone for the general proposition that “a little deviat[ion] from the received sense” of words is necessary where the words “bear … a very absurd signification.” Scalia and Garner do not cite or mention Blackstone at all in discussing their “two limiting conditions.” Rather, they cite Justice Story for the first and a law-review article and two 20th-century cases for the second. No careful reader would read their section on the absurdity doctrine as purporting to summarize Blackstone’s position.

Indeed, the very careful reader would discover—admittedly, many pages later (p. 357)—that Scalia and Garner expressly signal their disagreement with the breadth of Blackstone’s absurdity doctrine. Indeed, they do so in the course of discussing how they would reach the same result as Blackstone on one of the Blackstone hypotheticals that Amar raises: whether a prohibition on “draw[ing] blood in the streets” would (in Scalia and Garner’s summary) “extend to a surgeon who opens the vein of a person who has fallen down in the street with a fit.” Whereas Blackstone “would say no by applying the absurdity doctrine,” they would instead apply the “conventional meaning of the language.”

In support of his claim that Scalia and Garner misread Blackstone, Amar presents what purports to be a substantial passage from Blackstone, consisting of three sentences separated by ellipses. Each of the three sentences appears in Blackstone’s Laws of England, but not near enough to each other to justify the ellipses and not even in the order that Amar combines them. The first sentence appears on page 91 of Blackstone’s first volume, the second sentence on page 60, and the third sentence two paragraphs later on page 61. I point this out not to contest Amar’s reading of Blackstone (a matter irrelevant to the point at hand—i.e., that Amar is wrong to contend that Scalia and Garner purport to restate Blackstone). But the passage that Amar cobbles together misleads the reader into thinking that Scalia and Garner improperly clipped the one passage they did quote.

I’ll also note that Amar acknowledges on one page that “Scalia and Garner quote only a short snippet from Blackstone” but somehow complains two pages later of their “mangling of some of Blackstone’s most notable passages.” It’s too bad that the fact that they didn’t quote or discuss these passages didn’t awaken Amar to the fact that they weren’t purporting to restate Blackstone—and thus weren’t “mangling” passages that they weren’t even discussing.

* It is common for editors to impose titles and subtitles on authors, so I don’t impute the subtitle to Amar.


The Latest