Originalist Sin

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

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.

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