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.

The trouble with textualism is that it may not be enough of a constraint. Ronald Dworkin can turn any statement on its head; willful judges can turn any theory into a joke. Interpretive theory has its limits. Scalia is acutely aware of this difficulty and tries to meet it with an explicitly political argument: The continued invention of extra-constitutional rights, Scalia warns in A Matter of Interpretation, may trigger a majoritarian response. "At the end of the day," he writes, "an evolving constitution will evolve the way the majority wishes." Scalia does not advocate a majoritarian backlash. Rather, he invokes it as "the only thing that will strike fear in the hearts" of liberal judges and, consequently, force a return to constitutional norms.

Scalia is exactly right in observing that politics, not theory, is the ultimate constraint on wayward judges. He is equally correct in observing that a Living Constitution under majoritarian auspices can't possibly be good for individual rights. Still, the point seems overdrawn: The public has been exceedingly tame in resisting the Court's usurpations on behalf of the powerful few. Scalia knows this; he muses that he may be "overestimating the democratic vigor of our institutions."

Scalia's ferocious dissents are designed to foster opposition to the Court's anti-democratic usurpations. In Romer v. Evans (1996), for example, the Supreme Court declared that the voters of Colorado could not bar the enactment of special "civil rights" protections for homosexuals. The majority did not bother to cite a single precedent or to marshal anything one might call an argument. Scalia met this ham-fisted decision with sarcasm, sneers, and an explicitly ideological critique. The Court, he pointed out, had chosen sides in the Kulturkampf and decided to protect the lifestyles of the Hollywood set against the preferences (in the Court's pernicious term, the "animus") of the neither rich nor famous.

Scalia's sharp tone has its drawbacks. For one thing, it occasionally detracts from his arguments--such as his point that the Romer Court, in its desperate urge to protect homosexual "rights" against "discrimination," ran roughshod over the voters' desire to protect the far more fundamental association rights of religious citizens. Scalia's substantive arguments against the Romer Court's insulting description of such rights as "bigotry" should persuade anyone seriously interested in individual rights, but those arguments tend to get lost in his invective against the Court's "terminal silliness."

Moreover, Scalia's rude language invariably hurts Justice O'Connor's feelings. In Planned Parenthood v. Casey (1992), the Supreme Court opined that the constitutional "right to define one's own concept of existence, of meaning, of the universe, and of the mystery of life" precludes abortion restrictions that O'Connor considers an "undue burden." Scalia's brutal dissent openly questioned O'Connor's judicial competence. After this flap, O'Connor appears to have signed a Scalia majority opinion in only two contested cases (St. Mary's Honors Center v. Hicks, a mildly interesting case involving burden-of-proof questions in civil rights litigation, and BFP v. Resolution Trust Corp., an impenetrable bankruptcy case). Since the conservative majority on the Court cannot prevail without O'Connor's vote, Scalia rarely gets to write a majority opinion in a controversial case.

It's hard to believe that Scalia ignores these costs simply to vent his frustration (though, in fairness, he could hardly have predicted that O'Connor would sulk for a full five years). Nor, contrary to frequent suggestions, do Scalia's classic dissents betray an uneven temperament; by all accounts, he is a good-natured fellow. While his outrage at the Court's escapades is real enough, his sarcasm and invective are calculated. Since he cannot reason with Imperial Justices, he must show that they are stark naked. The point is to attack not merely the Court's decisions but its legitimacy. The complacent public needs a wake-up call, preferably from the bench. If the other justices get rattled, so much the better.

Scalia has been compelled to write far too many angry dissents. The fact that he wrote no such dissent this past term suggests that his argument has begun to hit home. In the "right to die" cases, for example, a unanimous Supreme Court found that there is no constitutional provision to support a right to enlist one's doctor in killing oneself. This observation is correct--and a bit perplexing. There is also no constitutional basis to enlist a doctor's help in killing something that at some point is someone else, and yet this right (enshrined in Roe v. Wade) remains sacred. The Supreme Court's restraint in the right-to-die cases reflects not only the influence of Scalia's textualist theory but also, and primarily, his warning of a possible backlash.

If textualism is in one sense not enough of a constraint (thus requiring a political flanking maneuver), it is in another respect too much of a constraint. Under a textualist reading of the Commerce Clause, for instance, 90 percent of the federal government's business is flat-out unconstitutional, having nothing to do with the regulation of interstate commerce. But the Supreme Court cannot single-handedly repeal the New Deal, much as this prospect may cheer readers of REASON. Among other things, the justices must take account of six decades' worth of precedents.

In A Matter of Interpretation, Scalia allows for precedents and stare decisis as a modification (but not a part) of his interpretive theory. He outlines a few rules indicating when the Court may or should overrule precedents, mostly those that are clearly wrong and lack an extended pedigree. Ultimately, Scalia suggests that textualism's utility lies primarily in preventing new judicial departures into outer space. But this defense is a bit lame. It suggests that we must live with rules that are anti-democratic and wrong--and predominantly based on egalitarian preconceptions.

Scalia would find more favor among libertarians if he pushed textualist arguments further and harder, precedents be damned. And in truth, his opinions have been more ambitious than his circumspect essay would suggest. Printz v. United States, decided last June, is one of Scalia's rare majority opinions. (O'Connor signed the opinion but, true to form, submitted a separate concurrence.) The decision struck down the federal Brady Act, which directed local sheriffs to conduct background checks on would-be gun purchasers.

Fearful of producing a full-scale confrontation with Congress, the Supreme Court had in earlier, similar cases shied away from a direct examination of whether Congress possessed an "enumerated power" to legislate and instead asked the narrower question of whether the 10th Amendment permitted Congress to "commandeer" the states in the exercise of its powers. The 10th Amendment, however, says nothing about commandeering. It reserves to the states or to the people powers not granted to the federal government, thus reaffirming the "enumerated powers" doctrine the Court has tried to skirt.

Scalia's ingenious Printz opinion admits as much and instead bases the decision on the structure of the Constitution. This structural argument affirms a robust notion of dual sovereignty between the states and the national government. In the end, Scalia even maintains that Congress lacked the power to enact the Brady Act under, of all things, the Necessary and Proper Clause--thus suggesting, for the first time in a "commandeering" case, a resurrection of the enumerated powers doctrine.

Commenting from the bench, Justice John Paul Stevens compared the Printz majority opinion to Brennan's jurisprudence of extra-textual "penumbras" and "emanations." In the sense in which Stevens intended the point, it is cheap polemics. Scalia's structural argument reflects the actual constitutional structure, not some fanciful emanation. In going beyond the text and the precedents, Scalia brings the law back to the actual Constitution.

In a different respect, however, the Printz opinion does have a Brennanesque flavor. Brennan routinely laced his opinions with sweeping statements that were unnecessary to decide the case at hand. His brethren either failed to notice these land mines or neglected to defuse them on the spot, since they seemed so far afield from the constitutional ground the Court was then treading. But the charges often exploded in a later case, when Brennan, who always thought two or three cases ahead of his colleagues, would cheerfully invoke his earlier, expansive dicta as well-settled law. Printz has the same quality. Its expansive pronouncements are not the holding of the case, but they open up broad opportunities for a reconstruction of constitutional principles. Open to question as a matter of precedent, the opinion is a masterpiece of judicial statesmanship.

"With five votes, you can do anything around here," Brennan once candidly summed up his "jurisprudence." Scalia has spent a good part of his career articulating a coherent theoretical response to a five-vote tyranny. This theory is bringing us a long way from the Living Constitution and back to the far more individualist, libertarian Constitution that we actually have--both on account of textualism's inherent attraction and because Scalia, like his arch-foe and fellow Catholic William Brennan, understands that great justices are like great popes: While they cannot be great without a coherent view of the world, they are in the end admired not for their theoretical contributions but for their statesmanship and their ability to bend institutions to their will. Antonin Scalia, like his pope, is well on his way to greatness.

Michael Greve ([e-mail]) is executive director of the Center for Individual Rights in Washington, D. C.