By: Adam Ondo
Texas Tech University School of Law, J.D. 2017
I. Interpreting Law: A Neglected Science
At many law schools, students are taught little about the different schools of thought that govern the interpretation of law, and many professors of constitutional law fail to provide any historical context for the clauses and amendments that they teach via case law, much of which is written by legal pragmatists (also referred to, derisively, as “activist judges”). Accordingly, I have compiled a list of books that law students should find the time—easier said than done, I know—to read, as they touch on all the different schools of thought. Two of the books stand out, so I will review those at the end of this article.
The Two Books:
1. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)
2. Stephen Breyer, Active Liberty (2005)
1. Oliver Wendell Holmes, Jr., The Common Law (1881)
2. Hugo Black, A Constitutional Faith (1968)
3. Robert Bork, The Tempting of America: The Political Seduction of the Law (1990)
4. Robert Bork, Coercing Virtue (2002)
5. Richard Posner, Law, Pragmatism and Democracy (2003)
6. Stephen Breyer, Making Our Democracy Work (2010)
II. The Schools of Thought
There are two primary schools of thought: originalism and legal pragmatism. There are two distinct types of originalists: original meaning textualists and original intent textualists. There are also two types of legal pragmatism, at least that is how I conceptualize it: law & economics pragmatists and Living Constitutionalists.
Hugo Black’s 1968 book on interpreting law, A Constitutional Faith, criticized the Warren Court’s pragmatic approach to interpreting law. Specifically, he was concerned that the Court was deeming their personal views “fundamental rights,” even if those rights would not have been “found” in the Constitution back in 1787. However, Black did not coin the term “originalism”; the first use of the term “originalism” is credited to Paul Brest, who used it in a law review article from 1980. But what we now label original intent textualism was created by Robert Bork in 1971.
Bork, lamenting the “lack of theory” in constitutional law, wrote down some “neutral principles” in a law review article. Bork was concerned that federal judges were “imposing their own values upon the rest of us.” Unfortunately, that is still the concern of many legal scholars. Bork would go on to write a plethora of articles and books elaborating on his views regarding statutory interpretation. Bork’s views focused heavily on legislative intent and the views of the Founding Fathers; this was rejected by the late Justice Antonin Scalia.
Scalia was one of the founding members of the original meaning school of thought. Unlike Bork, Scalia rejected any reliance on legislative intent when interpreting the meaning of legal texts. He outlined his views in a book titled A Matter of Interpretation: Federal Courts and the Law, which was published in 1997. Scalia’s theory of interpretation switched the focus from original intent of the drafters to original meaning of the text as understood by the average citizen at the time the text was written. Scalia’s original meaning textualism is sometimes referred to as the “New Originalism,” while Bork’s original intent textualism is called the “Old Originalism.”
Over the past two decades, Justice Stephen Breyer has emerged as the leading legal pragmatist on the Court, penning three different books explaining his views. He is the archetypal activist judge, legislating from the bench so that his views become law. Justice Breyer and his ilk—despite their claims that legal pragmatism furthers democracy—actually use their powerful positions, and the intellect that allowed them to secure those positions, to shape the nation into what they think it should look like, even if that means usurping Congress and the legislatures of the fifty states.
III. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)
In 1997, Scalia released an essay he wrote, along with response essays written by a handful of legal and historical scholars, underscoring the need for a formalist approach to interpreting law at the federal level. The problem, as Scalia laid it out, was that many federal judges bring a common-law mindset into a civil-law setting. As most law students are taught in their first year, there is no federal common law, which is why this is a problem.
Scalia’s approach, best described as original meaning textualism, requires judges to look at the original meaning of the words of a legal text, not the current meaning. However, unlike Bork’s original intent textualism, Scalia wholly rejects reliance on legislative intent when interpreting law. First, Scalia highlights the inherent unfairness in holding citizens accountable for what their government intended, rather than what it actually said. “Men may intend what they will; but it is only the laws that they enact which bind us.” Second, Scalia points out that it is ludicrous to think that hundreds of individuals can share a collective “intent.” Third, Scalia, who served on a Court filled with legal pragmatists, makes a note that committee reports, which almost all federal judges rely on, are very unreliable and sometimes drafted just for later courts to read.
The first response essay was written by Gordon Wood, a professor of American history at Brown University. Professor Wood provides a nice historical backdrop to interpreting law in America, beginning with English jurist William Blackstone. Professor Wood correctly points out that Blackstone promoted an analysis of “subject-matter, intention, context, and reasonableness” when interpreting statutes. In further support of Scalia’s assertion that a framework is needed for interpreting law at the federal level, Wood explains: “The aim, as Jefferson put it, was to end ‘the eccentric impulses of whimsical, capricious designing man” and to make the judge “a mere machine’.”
Constitutional law professor Laurence Tribe wrote the next essay. Professor Tribe disagrees with Scalia’s suggestion that there is a “how to” manual for interpreting legal texts, though he does think there is a “how not to” manual. One of the more interesting issues that he raises is with how Scalia deals with interpreting unaltered portions of the Constitution in light of later amendments, which may change the understanding of the unaltered portion. Should judges use the new understanding of the unaltered portion because Congress and the States have spoken and amended it indirectly? One canon of construction says we look at texts holistically, meaning the unaltered portion may take on a new meaning. However, Scalia responds at the end of the book with: “Repeals by implication are disfavored.” That just begs the question of what it would take to overcome this “disfavored” outcome and find repeal by implication.
The late legal philosopher Ronald Dworkin was the last contributor. Dworkin begins by asserting that Scalia’s denouncement of strict constructionism and his allowance for correction of “scrivener’s error” show that Scalia is allowing intent to trump the literal text in some instances. Indeed, anyone other than a strict constructionist must rely on, according to Dworkin, intent in situations where the literal text would be absurd in application. However, Dworkin breaks intent down into two categories: semantic intention and expectation intention. Dworkin explains that Scalia actually relies on semantic intention when interpreting the law. This means Scalia cares about what legislatures intended to say with the words they chose, rather than what legislatures wanted or expected to happen, especially in a specific scenario. In his response, Scalia readily admits he looks at the “semantic intention” of the drafters when interpreting the law, meaning that Dworkin’s analysis is sound.
IV. Stephen Breyer, Active Liberty (2005)
Justice Breyer begins by explaining that there are two liberties. The first is the liberty of the ancients, which is the liberty of the people to actively create law. The second is the liberty of the moderns, which is freedom from undue government interference. Breyer then lays out his thesis, which is that courts should be involved in the “active and constant participation in collective power” that the liberty of the ancients entails.
The entire book is basically a defense of Breyer’s pragmatic views, which rejects Scalia’s originalist-textualist approach to interpreting law. Breyer’s first critique of a more formalist approach is: “The words are not ‘we the people of 1787’.” Breyer posits that the Founding Fathers must have known the nation would be faced with new legal challenges arising from changing technology and morals. His suggestion that judges, when interpreting something new in light of the Constitution, should “reconstruct the past solution imaginatively in its setting and project the purposes which inspired it upon the concrete occasions which arise for their decision,” is sound. Where Breyer shows his true colors is when he writes: “Since law is connected to life, judges, in applying a text in light of its purpose, should look to consequences, including ‘contemporary conditions, social, industrial, and political, of the community to be affected’.” “Consequences”—the word appears throughout the book—is Breyer’s favorite word, and it is a dangerous word.
Over the course of the next few chapters, Breyer provides numerous examples showing how legal pragmatism and legal textualism lead to different outcomes; particularly, he highlights how originalist doctrines can “produce seriously harmful consequences—outweighing whatever risks of subjectivity or uncertainty are inherent in other approaches.” He does a good job underscoring the reasoning behind each of his preferred outcomes for each example, though the reasoning is often not based on any formal framework or canons of construction, but rather an amalgam of legislative intent, policy considerations, and Breyer’s own idea of what the people want or, sometimes, need. Breyer admits this, albeit in a more elegant fashion, when he asserts: “In short, focus on purpose seeks to promote active liberty by insisting on interpretations, statutory as well as constitutional, that are consistent with the people’s will.” But make no mistake; Breyer does not want to rely solely on original intent, but rather the will of the people living today. The issue with Breyer’s desire to get the Court involved in “active liberty” is that Congress is supposed to update the law, not Justice Breyer and his colleagues on the Court.
V. Closing Remarks
I sincerely hope that this article was helpful is providing a basic understanding of the differences between the various schools of thought regarding statutory interpretation. Despite my obvious disdain for legal pragmatism, I hope that readers will read Justice Breyer’s works, as well as the works of other legal pragmatists, so that they may gain an informed perspective. There are valid criticisms of legal formalism, especially original meaning textualism, that need to be addressed. If you are a legal pragmatist, then please read the works of Scalia and Bork. One cannot be a competent advocate for a position without understanding the arguments against it.