Reading Law: the Interpretation of Legal Texts
| Publication year | 2021 |
| Pages | 348 |
Antonin Scalia and Bryan A. Garner. West 2012. 567 pages.
The new Scalia-Garner book is (with apologies to Churchill) a polemic wrapped in a compendium, inside a cultural phenomenon.
Celebrities abound. Justice Scalia, of course, is a celebrity jurist who needs no introduction. His co-author, [1] Bryan A. Garner, is an equally celebrated lexicographer: the current editor-in-chief of Black's Law Dictionary and the author of A Dictionary of Modern American Usage.[2] That last work was immortalized by the late David Foster Wallace, a long haired, MacArthur-Grant-certified genius, in an essay[3] that praised Garner's amiable, trust-inspiring authorial persona as a, or even the, voice of reason in what he called the "Usage Wars."[4] His thesis was that lexicographers, who are not elected, derive their authority to prescribe on language solely from their earned credibility and persuasiveness. Scalia and Garner, whose politics differ, [5] are said to have bonded first over their appreciation of Wallace's review.[6] In 2007, Garner actually arranged for Scalia and Wallace to meet.[7]
Other celebrities have weighed in. The Chief Judge of the Seventh Circuit, Frank Easterbrook, wrote a six-page preface to the book in which he concluded:
This book is a great event in American legal culture. One of your coauthors is the preeminent legal lexicographer of our time. As for your other coauthor, not since Justice Story has a sitting Justice of the Supreme Court written about interpretation as comprehensively as in the book you are holding.[8]
Judge Richard Posner, also of the Seventh Circuit, was less flattering.[9] He picked apart several of the illustrations used in the text—the meaning of "sandwich"[10] may or may not exclude tacos and burritos, but it is not limited to two slices of bread with a filler; the "cohabiting non-relative" in the rent-control case[11] turned out to be the surviving member of a same-sex couple—and went so far as to characterize the book as Justice Scalia's response to the criticism of his decision in District of Columbia v. Heller, [12] which drew an indignant response from Mr. Garner.[13]
Reading Law is one of those rare reference works that offer a wealth of organized information, and yet can be read for pleasure.[14]Most of the book consists of fifty-seven canons, presumptions and principles for the interpretation of legal texts of all kinds, under the general heading of "Sound Principles of Interpretation." There are thirty-seven "Principles Applicable to All Texts" that the authors say apply as well to private texts, such as contracts and wills, as to public ones such as statutes and constitutions; these are followed by another twenty "Principles Applicable Specifically to Governmental Prescriptions."
The thirty-seven "Principles Applicable to All Texts" are subdivided into five "Fundamental Principles" (e.g., "4. Presumption Against Ineffectiveness"[15]), eleven "Semantic Canons" (e.g., "10. Negative-Implication Canon, "[16] seven "Syntactic Canons" (e.g., "20. Nearest-Reasonable-Referent Canon"[17]), and fourteen "Contextual Canons" (e.g., "32. Ejusdem Generis Canon", [18] "37. Absurdity Doctrine"[19]).
The twenty "Principles Applicable Specifically to Governmental Prescriptions, " too, are further subdivided. There are seven "Expected-Meaning Canons" (e.g., "41. Presumption Against Retroactivity"[20]), three "Government-Structuring Canons" (e.g., "46. Presumption Against Waiver of Sovereign Immunity"[21]), four "Private-Right Canons" (e.g., "51. Presumption Against Implied Right of Action"[22]), and six "Stabilizing Canons" (e.g., "54. Prior-Construction Canon, "[23] sometimes called "legislative acquiescence").
The canons are lucidly explained, usually in about five pages, often illustrated with paragraph-length case briefs. Only two of the canons require as many as fifteen pages, and one of the two[24] is central to the authors' thesis: the " Fixed-Meaning Canon"[25] posits that words must be given the meaning they had when the text was adopted, and is the foundation-stone of the doctrine of textual originalism (or simply, "textualism"). In the authors' view, anything else is anti-democratic, subjecting the text adopted by the elected legislature to the caprices of unelected judges. The merits of textual originalism are beyond the scope of this review, but the reader should be warned that the doctrine infuses the entire work.
Whatever the treatment lacks in depth, it makes up in breadth. Simply having assembled the fifty-seven canons of construction in one convenient and relatively affordable volume is a useful and practical contribution, of particular value to those who toil in the vineyard of statutory construction. This volume can be read from beginning to end in a couple of days, if need be, and given the unlikelihood that any escaped the roundup, the reader may be confident that he will not be ambushed by an undiscovered canon.
Once an applicable canon has been identified, it may be well to resort to Sutherland, [26] although then-Justice Peters suspected that Sutherland was "more often cited than read."[27] Better yet, one can use the distinctive Latin phrases provided by the authors as search terms for finding pertinent cases.[28]
However, the authors did not stop there. The book concludes with a second major section headed "Thirteen Falsities Exposed." Typographically, the font for this heading is equaled only by that used for "Sound Principles of Interpretation"; it follows, from the "Title-and-Headings Canon, "[29] that the authors consider the two sections to be of e qual importance.[30] As the "Sound Principles of Interpretation" is the compendium, the "Thirteen Falsities" is the polemic.
In this section, the authors take issue with twelve "false notions" and one "half-truth" that most readers would have taken as established doctrine: that, for example, remedial statutes should be liberally construed, [31] or that the Living Constitution is an exception to the rule that legal texts must be given the meaning they bore when adopted.[32]By far the longest entry—twenty-two pages—is devoted to "[t]he false notion that committee reports and floor speeches are worthwhile aids in statutory construction."[33]
The authors' argument in this entry is of a piece with their defense of their "Fixed-Meaning Canon:" that only the doctrine of textualism is truly faithful to the concept of democratic government. In the case of the fixed meaning canon, their claim is that once an authoritative text has been adopted by a democratically elected legislature, if its meaning is not to be subject to change at the hands of unelected judges then that meaning must be fixed as of the time of its adoption. In the case of legislative history, the words of a few legislators in committee, or on the floor, must not be allowed to trump the lexical meaning of the only words the entire...
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