Vexed by the Text

A Matter of Interpretation: Federal Courts and the Law, by Antonin Scalia, with Ronald Dworkin, Mary Ann Glendon, Gordon S. Wood, and Laurence Tribe, edited by Amy Gutmann, Princeton, N.J.: Princeton University Press, 159 pages, $19.95

The late Justice William Brennan's reputation as the most influential Supreme Court justice of his generation will soon belong, and should by rights already belong, to Brennan's staunchest opponent, Justice Antonin Scalia. This is good news for the Constitution--and, on the whole, for libertarians.

Admittedly, the comparison may seem inflated, or at least premature. During his 34 years on the bench, Brennan authored scores of path-breaking majority opinions, in the process creating a "Living Constitution" consonant with his egalitarian predilections. Scalia, in contrast, is known for his acerbic dissents and, especially during the past five years, has written few important majority opinions.

The Supreme Court's jurisprudence, however, provides ample evidence that Scalia has largely succeeded in his ambitious central project--the repudiation of Brennan's Constitution and the restoration of a jurisprudence grounded in the constitutional or statutory text. Not long ago, Supreme Court decisions routinely revolved around constitutional "values" or invented legislative "histories"; now, they typically follow the text of the law.

Legal scholars and journalists (even and especially those of a left-liberal persuasion) generally agree both on the increased salience of textual arguments in Supreme Court opinions and on the signal importance of this trend. Legal scholars and journalists such as the New Republic's Jeffrey Rosen are now making a sport of lambasting Justice Scalia for his alleged "activism" and infidelity to textualist principles. Coming from long-time cheerleaders of the Court's flights into a wonderland of liberal "values," the criticism is noteworthy chiefly for its mendacity. Still, it illustrates the extent to which Scalia has managed to define the terms of the debate.

The legal and media establishments have been relentlessly hostile to Scalia's project, and he has had to make do with a sharply divided Court whose direction, such as it is, seems to depend chiefly on Justice Sandra Day O'Connor's intuitions and mood swings. Why, then, is textualism carrying the day? Part of the answer lies in the force of Scalia's argument. Another and probably larger part lies in Scalia's persistence and energy, his awareness of the limits of abstract theory, and his clear understanding of the political context within which the Supreme Court operates.

A Matter of Interpretation demonstrates both the attraction of Scalia's "textualist" theory and his qualities as a judicial statesman. It consists of Scalia's lecture by that title, along with responses by Laurence Tribe and Ronald Dworkin and essays by Gordon Wood and Mary Ann Glendon. (The book also contains Scalia's reply to his critics.) Scalia's elegant essay, the most concise and accessible presentation of his views, argues eloquently that judicial authority can only be based on the statutory or constitutional text; that words have an ascertainable meaning; and that a judiciary that invents law rather than applying it lacks legitimacy and threatens democratic governance.

Tribe's and Dworkin's responses illustrate the force of Scalia's theory. Both are notorious for urging judges to boldly go where none have gone before. Here, however, both profess an unflinching commitment to textualism. Tribe claims to "share with Justice Scalia the belief that the Constitution's written text has primacy and must be deemed the ultimate point of departure." Dworkin calls the idea of a nontextualist Constitution "hardly even intelligible" and huffily denies that he, or Brennan, or anybody else, ever endorsed such a notion.

They don't mean it. Dworkin maintains that the Eighth Amendment prohibition of cruel and unusual punishment renders the death penalty unconstitutional. This, he says, is "the most natural statement of what the authors of the Eighth Amendment intended to say," and never mind that several clauses of the Bill of Rights explicitly contemplate the death penalty. Tribe, while conceding that "nothing that is contrary to the text of the Constitution can be part of it," insists that the Constitution projects "a set of messages undergoing episodic revisions that reverberate backward as well as forward." Unfailingly, the messages coincide with the liberal cause du jour. Over the years, Tribe has peddled a half-dozen increasingly absurd arguments for Roe v. Wade. None has reverberated, but Tribe remains supremely confident that the right to abortion on demand is right there in the Constitution. As for the death penalty, Tribe is awaiting the next episodic revision to make up his mind. In short, Dworkin's and Tribe's textualist pretenses are a thin cover for their effort to mobilize the Constitution for left-liberal causes.

Once asserted, however, the pretense ensures that the debate will be waged on Scalia's textualist territory. This territory still leaves ample room for judgment (or manipulation), and judges will often disagree about the precise meaning of the text at hand. But as Scalia observes, once the central importance of the legal text is
conceded, judges will at least argue about the right questions. Textual arguments must eventually be contested on textual grounds, and this necessity has a constraining effect. On a Supreme Court that otherwise lacks an intellectual center, textualism has exerted a powerful gravitational pull.

Generally, the pull has been in an anti-statist direction, and this tendency flows directly from the theory. Scalia distinguishes textualism not only from a free-wheeling Living Constitution but also from a crabbed notion of "strict construction." A legal text, Scalia observes, should be construed neither "strictly" nor broadly, but fairly. If the text itself fails to supply the answers (as is sometimes the case), the structure of the legal document and prevailing historical traditions are useful and legitimate sources of interpretation.

Scalia is not a libertarian per se. However, his understanding of textualism systematically drives interpreters toward results that are far more individualistic than judicial flights into constitutional values and emanations, which will almost invariably have a collectivist bent.

Once the Supreme Court strays from the text, it must find legitimacy elsewhere. It must build and maintain political support, and so constitutional law becomes another interest group racket. Brennan's Living Constitution was at bottom a campaign for the political support of the governing liberal elite and its favored constituencies--blacks at first, then other minorities, then women.

Even the Brennan Court's ostensibly libertarian commitments typically followed the dictates of egalitarian politics. Free access to abortion was thought to be good for women's liberation. Similarly, the Court expanded (some) First Amendment rights, first, because a "robust dialogue" seemed to favor the downtrodden and, second, because spouting off is how intellectuals--the Brennan Court's base of support--earn their living. When it came to the free speech of, for example, political campaign contributors, Brennan ditched the First Amendment (tellingly, over Scalia's strenuous objections). And now that civil rights groups no longer like free speech (because someone else seems to be winning the debate), Brennan's disciples are pushing speech codes and "harassment" regulations, on the theory that speech that isn't nice to women and racial minorities isn't really speech.

Scalia, in contrast, has upheld traditional First Amendment rights against "hate speech" regulation (RAV v. St. Paul, 1992). He dissented when a coalition of abortion enthusiasts and The-State-Can-Do-No- Wrong conservatives on the bench ran roughshod over the free speech rights of abortion protesters (Madsen v. Women's Health Center, 1994). He dissented when the Court curtailed the constitutional right to confront one's accusers in child abuse trials (Maryland v. Craig, 1990). And in Lucas v. South Carolina Coastal Council (1992), the most important "takings" case of the past decade, Scalia engineered a partial reconstruction of constitutional protection for common-law property rights, while his evolutionist brethren denounced private property as a menace to global survival. In short, since the constitutional text is far more individualistic than the evolutionist's political commitments, textualism favors individualism while constraining egalitarian usurpations.

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