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A Matter of Interpretation: Federal Courts and the Law

A Matter of Interpretation: Federal Courts and the Law

Copyright Date: 1997
Edition: STU - Student edition
Pages: 176
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  • Book Info
    A Matter of Interpretation: Federal Courts and the Law
    Book Description:

    We are all familiar with the image of the immensely clever judge who discerns the best rule of common law for the case at hand. According to U.S. Supreme Court Justice Antonin Scalia, a judge like this can maneuver through earlier cases to achieve the desired aim--"distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal--good law." But is this common-law mindset, which is appropriate in its place, suitable also in statutory and constitutional interpretation? In a witty and trenchant essay, Justice Scalia answers this question with a resounding negative.

    In exploring the neglected art of statutory interpretation, Scalia urges that judges resist the temptation to use legislative intention and legislative history. In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself. Scalia then extends this principle to constitutional law. He proposes that we abandon the notion of an everchanging Constitution and pay attention to the Constitution's original meaning. Although not subscribing to the "strict constructionism" that would prevent applying the Constitution to modern circumstances, Scalia emphatically rejects the idea that judges can properly "smuggle" in new rights or deny old rights by using the Due Process Clause, for instance. In fact, such judicial discretion might lead to the destruction of the Bill of Rights if a majority of the judges ever wished to reach that most undesirable of goals.

    This essay is followed by four commentaries by Professors Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, who engage Justice Scalia's ideas about judicial interpretation from varying standpoints.

    eISBN: 978-1-4008-2217-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-2)
  4. Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws
    (pp. 3-48)

    The following essay attempts to explain the current neglected state of the science of construing legal texts, and offers a few suggestions for improvement. It is addressed not just to lawyers but to all thoughtful Americans who share our national obsession with the law.

    The first year of law school makes an enormous impact upon the mind. Many students remark upon the phenomenon. They experience a sort of intellectual rebirth, the acquisition of a whole new mode of perceiving and thinking. Thereafter, even if they do not yet know much law, they do—as the expression goes—“think like a...

  5. Comment
    (pp. 49-64)

    This is very distinguished legal company, and I confess to wondering about my qualifications to be a commentator on Justice Scalia’s paper. I do not seem to have too many of them. I have never been to law school, so I have not experienced that intellectual rebirth which Justice Scalia says every first-year law school student experiences. I am not a jurist. I am not a legal philosopher. I am not a law professor. I am not even a legal or constitutional historian. I am just a plain eighteenth-century American historian who happens to have written something on the origins...

  6. Comment
    (pp. 65-94)

    I do not propose to discuss here the entirety of Justice Scalia’s remarks about what he perceives to be the lamentable influence of common-law methodology on the enterprise of interpreting statutory and constitutional texts. Rather, I will focus on the enterprise ofconstitutionalinterpretation in particular, and on my points of agreement with, rejection of, or puzzlement at what Justice Scalia has said in these lectures on that especially significant subject.

    Let me begin with my principal area of agreement with Justice Scalia. Like him, I believe that when we ask what alegal textmeans—what it requires of...

  7. Comment
    (pp. 95-114)

    As a comparatist with a special interest in contemporary European law, I cannot help but be intrigued by Justice Scalia’s use of the “civil-law world” as a metaphor for an American legal environment increasingly dominated by enacted, rather than judge-made, law. For my contribution to this symposium, therefore, I offer some reflections on two questions prompted by the justice’s figure of speech: Have civil-law lawyers and judges fared any better than we Americans in the maze of twentiethcentury legal materials? If so, what can we learn from their experience?

    Comparative analysis can often shed light on a problem by throwing...

  8. Comment
    (pp. 115-128)

    Justice Scalia has managed to give two lectures about meaning with no reference to Derrida or Gadamer or even the hermeneutic circle, and he has set out with laudable clarity a sensible account of statutory interpretation. These are considerable achievements. But I believe he has seriously misunderstood the implications of his general account for constitutional law, and that his lectures therefore have a schizophrenic character. He begins with a general theory that entails a style of constitutional adjudication which he ends by denouncing.

    His initial argument rests on a crucial distinction between law and intention. “Men may intend what they...

  9. Response
    (pp. 129-150)

    Afew words are appropriate in response to the statements of the commenters. The length of my response to each bears no relationship, either direct or inverse, to my estimation of the value the statement in question has brought to this discussion—which for all four is great indeed. Some, however, require me to explain myself more than others.

    In Professor Wood’s scholarly presentation, the principal point with which I take issue is his assertion that in the English legal system statutes “had to make sense in terms of the rest of the common law,” i.e., that there was an inherent...

  10. Contributors
    (pp. 151-152)
  11. Index
    (pp. 153-159)