Issue #27, Winter 2013

Originalist Sin

The new book by Antonin Scalia and Bryan A. Garner is very sure of itself—in fact, far too much so.

Reading Law: The Interpretation of Legal Texts By Antonin Scalia and Bryan A. Garner • Thomson Reuters • 2012 • 567 pages • $49.95

A simple question for Antonin Scalia and Bryan A. Garner: Who presides at a vice president’s impeachment trial? The Constitution’s text seems straightforward: According to Article I, Section 3, “The Vice President of the United States shall be President of the Senate,” and “The Senate shall have the sole power to try all Impeachments.” So if we follow the text’s literal meaning, the vice president gets to preside over his own impeachment.

Is this plain-meaning argument decisive? Of course not, as I explain in the opening pages of my new book, America’s Unwritten Constitution: The Precedents and Principles We Live By. But in their own new book, Reading Law: The Interpretation of Legal Texts, Scalia and Garner appear to embrace an approach that would indeed allow vice-presidential self-dealing of this grotesque sort. The key issue here is how judges and other interpreters should respond when the literal text seems to direct an absurd result—allowing, for example, a person to preside over his own case, or enabling a man to inherit the estate of the rich aunt whom he murdered in cold blood precisely in order to profit from his wrongdoing.

Were the authors of Reading Law merely obscure legal scribblers, the book’s overreliance on apparent textual plain meaning, and its undervaluation of various venerable exceptions to literalism such as “the absurdity doctrine” (as it is widely called), might not be cause for alarm. But of course, Antonin Scalia enjoys special authority as an intellectually ambitious and stylish jurist—a former professor at several leading law schools, and currently the senior associate justice on the Supreme Court. In this book, targeted especially at lawyers, law students, and lower-court judges but also attempting to draw in a wider circle of civic-minded citizens, Scalia and his erudite co-author (also a law professor and the current editor-in-chief of the prestigious Black’s Law Dictionary) aim to offer a treatise-like account of the rules and principles of statutory and constitutional interpretation. The result is a sprawling patchwork comprising dozens upon dozens of self-contained subsections, each exploring a different canon of legal interpretation.

I am not an expert on all or even most of these canons, and several of them are far more notable in ordinary statutory interpretation than in constitutional exegesis—my own area of expertise. Indeed, one overall weakness of Reading Law is that it does not clearly and in one place explain all the ways in which constitutional interpretation might sensibly differ from ordinary statutory interpretation. A strongly literalistic approach might make sense when dealing with prolix and often technical statutes drafted by and for legal insiders and easily amended by sitting legislatures. But does a similar willingness to emphasize letter at the expense of spirit make sense when dealing with the written Constitution—a uniquely terse and hard-to-amend document designed to be broadly accessible to layfolk and to serve as a unifying cultural symbol setting forth first principles? Also, unlike most statutes, the written Constitution is a temporally extended text, uniting amendments spanning centuries. All of its amendments have simply been tacked on to the end of earlier versions of the document without comprehensively rewriting earlier language. Doesn’t the very nature of such a document involve unique interpretive questions about how broadly to reread earlier patches of constitutional text to harmonize with the purpose and spirit and logic of later amendments?

Scalia and Garner do not spend enough time pondering constitutional questions such as this; but they do purport to offer a reliable synthesis of the basic rules of legal interpretation—especially the rules of ordinary statutory construction. But on one particular rule of interpretation—the “absurdity doctrine,” a canonical principle that I did study at length long before reading Reading Law, I must sadly report that Scalia and Garner have badly misstated the matter.

To expound and analyze the “absurdity doctrine,” both Scalia-Garner and I rely on the same old book—William Blackstone’s Commentaries on the Laws of England, first published in the 1760s, and one of the two most cited law books (along with Montesquieu’s The Spirit of the Laws) in America during the late eighteenth century. (Blackstone himself, interestingly enough, can be seen as a precursor to Scalia—a judge who wrote an ambitious legal treatise aimed at both legal insiders and a broader public.) But Scalia and Garner’s reading of Blackstone is flatly erroneous, and this error in turn raises questions of whether similar errors of research and reporting infect their treatise as a whole.

According to Scalia and Garner, if the literal meaning of a legal enactment, such as a statute or a Constitution, would lead to a weird result, judges may disregard the literal meaning and deviate from the text under the absurdity doctrine—but only when two conditions are met. First, “[t]he absurdity must consist of a disposition that no reasonable person could intend.” A merely odd or suboptimal outcome does not suffice to trigger the absurdity doctrine and warrant a judicial disregard of the enactment’s plain meaning. Second, “[t]he absurdity must be reparable by changing or supplying a particular word or phrase whose inclusion or omission was obviously a technical or ministerial error…. The doctrine does not include substantive errors arising from a drafter’s failure to appreciate the effect of certain provisions.”

In other words, if the drafters obviously meant to say “up” but instead said “down” or surely meant to say that attorney’s fees should be paid to the “winning” party but instead said the “losing” party, judges can correct this simple slip of the pen. Because it was obvious what the legislators in fact plainly envisioned and intended, a judge who disregards a scrivener’s error is in fact fulfilling the lawmakers’ true intent. Typos happen, and good readers overcome them.

Fair enough. But the absurdity doctrine, a la Blackstone, went far beyond the correction of mere scrivener’s errors. Blackstone made clear that in certain unusual situations that the legislature did not squarely consider when it crafted general language, judges could deviate from the literal meaning of legislative enactments in order to avoid absurdity:

Where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and [as to this collateral matter] disregard it…. [T]he rule is, where words bear… a very absurd signification, if literally understood, we must a little deviate from the received sense of them…. [S]ince in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legislator himself would have excepted. [emphasis added]

In their discussion of the absurdity doctrine, Scalia and Garner quote only a short snippet from Blackstone. But as is obvious when we examine the entirety of Blackstone’s discussion, the absurdity doctrine goes beyond scrivener’s errors—what Scalia and Garner refer to as “obviously a technical or ministerial error.” Indeed, Blackstone himself offered up two vivid illustrations of the absurdity doctrine in action and both involved neither typos nor mere scrivener’s errors. First, Blackstone explained that a law punishing anyone who “drew blood in the streets” should obviously not apply to a doctor performing an emergency surgery upon a stricken pedestrian—a situation that the enacting legislature simply did not envision and that therefore required judges to do more than merely correct a “technical or ministerial error” of draftsmanship.

Blackstone’s second example is even more eye-opening, and is in fact stunningly apt in helping us to think about our own Constitution’s language concerning vice presidential impeachments: “[I]f an act of parliament gives a man power to try all causes [cases], that arise within his manor of Dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that; because it is unreasonable that any man should determine his own quarrel.” [emphasis added]

The idea that no man should be a judge in his own case is tightly intertwined with the very idea of the rule of law, and surely this background precept should inform a proper reading of the constitutional clauses governing impeachment trials. Or at least that’s what Blackstone would say, as would the vast majority of the Founding Fathers, who considered Blackstone to be the gold standard on many legal issues.

But Scalia and Garner say something very different. In their effort to constrain improperly activist judicial policy-making, Scalia and Garner have gone too far in the other direction, mangling the absurdity doctrine as laid down by Blackstone. The authors apparently fear that once it is openly admitted that judges can address weird situations that the legislature did not anticipate, all judicial restraint would be lost, and judges would be able simply to displace proper legislative judgments at the drop of a hat. But of course, nothing of the sort follows from Blackstone’s doctrine properly understood and properly applied. The constraints highlighted by Scalia and Garner’s first condition—that judges should act only in cases of true absurdity, not mere suboptimal policy, and should act only to avoid a result that “no reasonable person” could favor—suffice to keep the absurdity doctrine from becoming judicial carte blanche.

Elsewhere in their book, Scalia and Garner discuss a situation in which a murderer stands to inherit from his victim—say, a rich aunt—because no statute explicitly bars this result, and because the murderer falls within the general next-of-kin language in the inheritance statutes on the books at the time of the murder. Prior to the mid-twentieth century, some judges barred murderers from profiting from their own crimes in this way; others permitted the inheritance. Scalia and Garner side with the permissive judges who reached the “textually correct”—their words—outcome. But this result is absurd—morally obtuse. Surely this is not what any legislature ever intended. Indeed, Scalia and Garner themselves admit that “[a]s a general matter of right and wrong, all of us”—all of us!—“recoil from the thought that a murderer could advance his heirship.” And the authors take solace in noting that today, “all states have statutes that explicitly deal with this problem.” But surely it was evident even before all state legislatures explicitly addressed this unusual issue that lawmakers would have wanted to bar murderers from profiting from their crimes in this way—that, as a matter of first (if unwritten) principles, murderers should be judicially estopped from inheriting from their victims.

Granted, when construing statutes, perhaps judges should in genuinely close cases err on the side of literalism, and rely on legislatures to revise ill-considered language. But the statutory revisions necessary to anticipate every wrinkle and every exception may tend to make statute books longer and more technical. By contrast, the Constitution must necessarily be a more compact document if it is to remain accessible to ordinary people. (This was one of Chief Justice John Marshall’s main insights in the landmark 1819 case of McCulloch v. Maryland.) Thus, might it make sense for judges to strike a different balance between textual literalism on the one hand and common-sense holistic interpretation on the other when confronting constitutional language as distinct from the words of, say, the tax code? For lay readers who are more passionate about constitutional law than statutory interpretation, it would have been nice if the authors of Reading Law had devoted more focused and sustained attention to questions of this sort.

It is tempting at this point in the analysis to move from the lapses in Justice Scalia’s latest book to the lapses in his general jurisprudence on the Court. But this detour would not be fully fair to co-author Garner, nor would it be fair to Scalia himself, whose book deserves to be judged on its own merits regardless of what one thinks of his overall body of work as a jurist, either in general or in the specific domains of statutory and constitutional interpretation. (For what it is worth, in my classroom, I point to several prominent Scalia opinions as exemplary, and to others as execrable.) William Blackstone himself, it is worth noting, did not make much of a mark on the bench, but did write a toweringly influential treatise. By contrast, Scalia’s body of work as a justice may well prove far more influential than his academic writings. He is no Blackstone—and nowhere is this more evident than in the part of his new book that purports to channel Blackstone.

By misstating the venerable Blackstonian doctrine of absurdity, Scalia and Garner champion results that are, quite literally and precisely, absurd. Scalia and Garner’s mangling of some of Blackstone’s most notable passages raises questions about the general reliability of Reading Law as a work of sound scholarship. The book is undeniably ambitious. But is it perhaps too ambitious—too sure of itself, too quick to overlook important counterarguments and complicating evidence? Given the authors’ fondness for hoary Latin maxims, the two words that seem most appropriate, in light of the foregoing analysis, are caveat emptor.


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Issue #27, Winter 2013
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Hernan Sanhueza, Esq.:

I could not agree more. Justice Scalia is in no uncertain term, brilliant. That this intellect is verily wasted and disingenuously applied without the clear judicial 'activism' so eschewed by his opinions, whether in the majority, concurrences and dissents is pitiable at best and damaging at best.

Jan 10, 2013, 7:06 PM

If our supreme court embraced originalism and literal interpretation of the law, then our congress and president would then enact better clearer laws. It is not the courts job to fill in the blanks. If I were your neighbor, I'd move the fence ten feet further over on your land and tell you that the property deeds are living documents. How ridiculous. We have a system for changing things that don't work. It's the amendment system. We don't need liberal judges just deciding to change it because the wind is blowing that way this month.

Jan 14, 2013, 3:32 PM

My question for those who consider the idea of the Vice President presiding over the Senate in cases of their own impeachment as absurd, why is that so? Have you bothered to note that presiding over impeachment is for all practical purposes ceremonial in nature in that "rulings" from the presider can be overruled by the body of the Senate. Other than that, the only quesetion of absurdity would be with regard to the vice-president's other constitutional power to vote in the event of a tie in the Senate, which is irrelevant to an impeachment which requires a super majority vote to remove from office (the presider never has reason to vote).

Jan 14, 2013, 6:05 PM

Also, with regard to the Absurdity Doctrine, it generally only comes into play when there are multiple reasonable interpretations which the text will bear; where the acceptance of one would yield an absurd outcome, whereas the other would not, the one which does not yield the absurd outcome is the correct one. For example, although it has never been adjudicated, I have long questioned the notion that the President can grant prophylactic pardons prior to conviction (as opposed to a pardon being the setting aside or commutation of a sentence subsequent to conviction) because if they are empowered to do so, than President's are truly above the law in that they could grant themselves pre-emptive pardons for any crimes the have committed and never face charges even if impeached. Two possible interpretations (yes he can proactively pardon, no he can't), one yields an absurd result, the other does not, the later is the correct interpretation.

As Scalia has said repeatedly, there is a difference between saying a legislature clearly mispoke or was less than clear as opposed to saying they over-legislated or legislated unwisely.

Jan 14, 2013, 6:14 PM

On a side issue, is anyone else as confused by the term 'activist judges' as I am? Justice Scalia and his friends on the Supreme Court can be said to have determined the result of a presidential election. How much more active can Judges be?

Feb 4, 2013, 8:52 AM

"those circumstances, which (had they been foreseen) the legislator himself would have excepted"

Is it reasonable to assume a legislator in 1789 foresaw a weapon, costing less than one week's average income, that anybody could fire 15 times as fast as a well trained soldier of 1789?

If not, is the Second Amendment subject to the absurdity doctrine?

Feb 13, 2013, 2:28 PM

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