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Originalist Sin
The new book by Antonin Scalia and Bryan A. Garner is very sure of itself—in fact, far too much so.
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.
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 PMIf 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 PMMy 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 PMAlso, 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 PMOn 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 PMPost a Comment
Akhil Reed Amar is the Sterling Professor of Law and Political Science at Yale University, and is the author, most recently, of America's Unwritten Constitution: The Precedents and Principles We Live By.
Events
Democracy, Brennan Center Co-Host Money-in-Politics Event
On May 7, the Brennan Center for Justice, a New York City-based public policy institute, hosted a panel discussion co-sponsored by Democracy and Demos on money in politics, the subject of Democracy’s centerpiece symposium in the Winter 2013 issue.
News
Washington Post Interviews Kleiman on Crime Policy
In a March 28 post in The Washington Post’s Wonkblog, Dylan Matthews interviewed UCLA professor Mark Kleiman about his essay, “Smart on Crime,” in the current issue of Democracy.
News
Klein Cites Democracy Essay on Defense Spending
In his Bloomberg View column on February 13, Ezra Klein discussed the politics of military spending and highlighted a number of quotes from former Representative Barney Frank’s feature contribution to Democracy’s Winter 2013 issue.
