Maine Law Review

Volume 50 Number 1 Article 8

January 1998

A Matter of Interpretation: Federal Courts and the Law

Charles R. Priest
University of Maine School of Law

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Recommended Citation
Charles R. Priest, A Matter of Interpretation: Federal Courts and the Law, 50 Me. L. Rev. 185 (1998).
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BOOK REVIEW
A MArER OFINTERPRETATION: FEDERAL COURTSAND THELAW
by Antonin Scalia
(Princeton, New Jersey: Princeton University Press, 1997;
pp. 159, $19.95)
Reviewed by CharlesR. Priest'

Justice Scalia's engaging essay,' "Common-Law Courts in a Civil-

Law System: The Role of United States Federal Courts in Interpreting
the Constitution and Laws," and the four comments it provokes,2 should
provide lawyers, judges, and other lawmakers with an interesting
evening Instead of presenting a theoretical view of the role of the
federal courts in interpretation, Justice Scalia sketches out a case for
"textualism." "Textualism" is one of several currently contending
methods of interpreting statutes and the United States Constitution, and
is currently popular among federal judges who see their role as
restricting government's powers to those expressly stated in the written
text
Unbeknownst to most lawyers, and to some judges and academics, a
battle over statutory interpretation has been hard fought during the past
two decades, with the outcome of this struggle still in serious doubt.' As
happens so often, this battle is set in the law schools and law reviews
and has not been clearly outlined in judicial opinions, which form the
chief professional reading matter of most lawyers and judges.
Nevertheless, the struggle shapes judicial opinions, as Justice Scalia
makes clear, even though many judges are often unaware that they are
in the front lines of this battle.

* J.D., 1974, University of Maine School of Law. Practitioner, Augusta, Maine. Charles
Priest has taught legislation as a Visiting Professor of Law at the University of Maine School of Law
since 1979.
1. Antonin Scalia, Common-Law Courts in a Civil-Law 4stem: T7e Role of UnitedStates
Federal Courts in Interpretingthe Constitution andLaws, in A MATrER OF INTERPRETATION:
FEDERAL COuRTS AND THE LAw 3-47 (Amy Gutmann, ed., 1997).
2. See Ronald Dworkin, Comment, in A MATTER OF INTERPRETATION, supra note 1, at
115-29; Mary Ann Glendon, Comment, in A MATEROF INTERPRETATION, supra note 1, at 95-1 15;
Laurence H. Tribe, Comment, in A MATTER OF INTERPRETATION, supra note 1, at 65-95; Gordon
S. Wood, Comment, in A MATrER OF ISTERPRETATION, supranote 1, at 44-65.
3. Justice Scalia sees his audience as "all thoughtful Americans who share our national
obsession with the law" and "notjust... lawyers." Scalia, supranote 1, at 3; but it is an unusual
lay person who, having no professional investment in the legal system, will read the entire book.
4. See. e.g., Scalia, supra note 1, at 25-26 (illustrating the concept of"textualism" with
examples).
5. See, e.g., John Copeland Nagle, Newt Gingrich,D>mnlc Statutory Interpreter.143 U.
PA. L. REV. 2209 passim (1995) (reviewing WILIuAM N. EsKRIDGE, JR., DYNAIoc STATUTORY
INTERPRETATION (1994)); David L Shapiro, Continuity and Change In Statutory Interpretation.
67 N.Y.U. L. REv. 921 passim (1992) (listing some of the most important articles on statutory
construction during the past two decades).
 M4INE LA WREVIEW [Vol. 50:185

The chief contenders of this debate and their approaches may be

summarized as follows. The textualists claim to limit their interpretation
of statutes to ideas clearly expressed in the text of the statute at issue and
surrounding statutes. Those professing to follow the Legal Process
Theory, set out by Hart and Sacks,6 claim that "statutes should be
interpreted to carry out their purposes over time... [and] should be
interpreted consistently with the surrounding legal terrain or legal
principles."7 The Law and Economics School emphasizes a pragmatic,
economic approach to finding the costs and benefits of various
interpretations and then choosing the one yielding the best result.'
Those advocating a feminist viewpoint cite the need for an ethic of
caring to be used in statutory interpretation. 9 Finally, those advocating
Critical Race Theory say that statutes should be interpreted to reflect the
needs and concerns of disadvantaged minorities."° Justice Scalia does
not deal specifically with these various schools; rather, he attempts to
make his readers aware of the issues involving statutory and
constitutional interpretation apart from specific substantive areas and to
set forth his recommendations on how statutes and the United States
Constitution should be interpreted.
Justice Scalia first presented his essay as one of the Tanner Lectures
at Princeton University's Center for Human Values. To make the
discussion even more interesting, the University Center asked Professors
Wood, Tribe, Glendon, and Dworkin to comment on the lecture and then
gave Justice Scalia an opportunity to reply to the comments.I
Justice Scalia begins with a criticism of American legal education,
which, he says, teaches the common law method at the expense of

6. See HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS
IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr. & Philip P. Frickey eds.,
1994).
7. WILLIAM N. ESKRUDGE, JR., DYNAMIC STATUTORY INTERPRETATION 143 (1994).
8. See generallyRICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE (1990). See also
RICHARD A. POSNER, OVERCOMING LAW (1995) (critiquing other interpretive theories from a Law
and Economics perspective).
9. See, e.g., Naomi R. Cahn, The Case of the Speluncean Explorers: Contemporary
Proceedings,61 GEO. WASH. L. REV. 1754, 1761 (1993).
10. See, e.g., John 0. Calmore, CriticalRace Theory, Archie Shepp, and Fire Music:
Securingan Authentic IntellectualLife inaMulticulturalWorld, 65 S. CAL. L. REV. 2129,2160-78
(1992). There are yet other theories, too numerous to mention.
11. Commentators included Gordon S. Wood, Professor of American History at Brown
University; Lawrence Tribe, Ralph S. Tyler, Jr., Professor of Constitutional Law at Harvard Law
School; Ronald Dworkin, Professor of Law at New York University and Professor of Jurisprudence
at Oxford University; and Mary Ann Glendon, Learned Hand Professor of Law at Harvard
University. See Scalia, supranote 1,at 15 1. As one can see by reading Professor Tribe's comments
on pages 67 and 80, the Center also gave commentators the right to reply to Justice Scalia's final
comment and to the comments of fellow commentators. This can lead to a conceptual difficulty
almost as confusing as trying to interpret a statute which the courts have commented upon, which
the legislature has then amended, and which the courts have again commented upon. It is not clear
that all of the other writers have seen all of the comments in final form. One is then left wondering
who had the last word.
19981 A99]
M4TER OFINTERPRETATION

statutory interpretation. 2 Indeed, the entire first year of law school is

devoted not to interpreting statutes but to the common law method. This
method, says Justice Scalia, teaches students (and judges) to extract
rules of law from judicial opinions and to read cases either narrowly or
broadly in order to extract narrower or broader rules of law. 3 In dealing
with a new factual dispute to resolve, the student reviews the facts at
hand in the present case and decides whether earlier cases, with their
rules of law, are applicable depending upon the facts of the earlier cases.
If those cases do not squarely apply, then the student establishes a new
rule of law for the present case, using analogy from the rules of law in
earlier cases and the customs of society in the factual situation.
The problem, of course, says Justice Scalia, is that when judges use
the common law to make law, it is they, rather than our elected
representatives, who are making the law, even though under our
democracy and Constitution that role belongs to our elected
representatives." To the argument that, in fact, judges use the common
law method only to discover "a preexisting body of rules, uniform
throughout the nation," Justice Scalia replies that,"with the rise of legal
realism ... we came to acknowledge that judges in fact 'make' the
common law[.]"' 5 This appears to mean that judges using the common
law method do not, in fact, decide cases by a reasoned elaboration of
pre-existing rules of law, but rather respond in a pragmatic way to solve
the problem before them. Rules of lav may later be derived from these
decisions, but the rules come second rather than first. The problem, of
course, is that Congress, and not the judiciary, is supposed to be creating
new law to solve new problems.
Justice Scalia would be content to leave the areas of private law, such
as contracts and torts, to state judges and the common law method. At
the same time, he notes that because "[e]very issue of law resolved by
a federal judge involves interpretation of a text---the text of a regulation,
or of a statute, or of the Constitution, . . . the subject of statutory
interpretation deserves study and attention in its own right, as the
principal business ofjudges and (hence) lawyers."' 6 Justice Scalia says
that Hart and Sacks were correct, however, when they stated that "[tihe
hard truth of the matter is that American courts have no intelligible,
generally accepted, and consistently applied theory of statutory
interpretation."' 7 Indeed, says Justice Scalia, both the "American bar
and American legal education, by and large, are unconcerned with the
fact that we have no intelligible theory,"'" that law schools do not

12. See Scalia, supranote 1, at 14-15.

13. See id at 7-8.
14. Seeidat 10.
15. Id. See also AMmUCAN LEGAL REAuSM (William W. Fisher IMI
ct al. eds., 1993)
(collection of writings relevant to Legal Realism).
16. Scalia, supra note I, at 13-14.
17. HART&SACKS, supranote6, at 1169.
18. Scalia, supranote 1, at 14.
188 MAINE LA WREVIEW [Vol. 50:185

require courses in statutory interpretation, and that the only way for most
students to get some fragmentary knowledge of statutory interpretation
is to read cases in law courses, such as Securities Law, which are
governed by statutes. 9
Justice Scalia then moves on to a discussion of "a few aspects" of
statutory interpretation, stating that the subject is so broad that he cannot
deal with it comprehensively in his essay.2" He begins by asking, "What
are we looking for when we construe a statute?"' The answer provided
in many judicial opinions is that "we look for the intent of the
legislature."22 Justice Scalia therefore begins by examining legislative
intent. z
Judges cannot be searching for the subjective intent of the legislature,
says Justice Scalia, because their inquiry must stop when they find that
the statutory text in question is clear.24 This holds true, according to
Justice Scalia, even though it might be possible to show that the
subjective legislative intent is contrary to what the judge thinks is a clear
statutory expression.' Justice Scalia argues that judges, in fact, look for
"a sort of 'objectified' intent-the intent that a reasonable person would
gather from the text of the law" when placed in the context of the rest of
the governing law.26 By using this method, judges avoid having the
"meaning of a law determined by what the lawgiver meant, rather than
by what the lawgiver promulgated."27 ' They also avoid bringing common
law methods of judicial lawmaking into statutory interpretation. Such
interjection of common law occurs when judges attempt to find
legislative intent by putting themselves in the place of legislators and
using their own "objectives and desires" to determine legislative intent
even though none was expressed in the text of the statute.28
Justice Scalia then cites Church of the Holy Trinity v. UnitedStates29
as the prime example ofjudicial lawmaking disguised as an attempt to
find legislative intent. This case, a staple of law school courses in
statutory interpretation, involved the Church of the Holy Trinity in New
York City contracting with Walpole Warren, an Englishman, to be its
rector. 3' The United States argued that this contract violated the federal
Act of February 26, 1885, which, among other things, outlawed
contracting to import an alien into the United States "to perform labor

19. See id at 14-15.

20. See id at 16.
21. Id
22. Id
23. See id at 16.
24. See id.
25. See id at 16-17.
26. Id at 17.
27. Id
28. See id at 18.
29. 143 U.S. 457 (1892).
30. See id at 457-58.
19981 A MATTER OFINTERPRETATION

or service of any kind in the United States." 3' The Church successfully
argued that Congress did not intend to outlaw the importation of a
minister 2 Mr. Justice Brewer stated that, "[i]t is a familiar rule, that a
thing may be within the letter of the statute and yet not within the
statute, because not within its spirit, nor within the intention of its
makers."33' The statute was intended to reach the evil of the importation
of manual laborers, said the Court, and not ministers.'
According to Justice Scalia, this holding is simply incorrect. The
importation of Walpole Warren "was within the letter of the statute, and
was therefore within the statute: end of case."' As a warning to anyone
arguing before the Supreme Court, Justice Scalia states: "Church of the
Holy Trinity is cited to us whenever counsel wants us to ignore the
narrow, deadening text of the statute, and pay attention to the life-giving
legislative intent. It is nothing but an invitation to judicial lawmaking. '
Justice Scalia then cites other ways of "judicial lawmaking" that are
"more sophisticated" than relying on subjective legislative intent. 37 For
example, Justice Scalia cites Judge Guido Calabresi's proposal that
courts deal with statutes that "could not be reenacted today" by
recognizing their obsolescence and not applying them. Justice Scalia
also summarizes Professor William Eskridge's proposal by explaining
that judges who apply statutes should look not only to their abstract
meaning but also to "what [the statutes] ought to mean in terms of the
needs and goals of our present day society."39 Justice Scalia admits that
the judicial opinions discussed by Calabresi and Eskridge accomplish
"by subterfuge" what Calabresi and Eskridge propose to do outright; but
Scalia counters that, because judges are not elected, they cannot
have-in a democracy-the power to say that "laws mean whatever they
ought to mean. ' °
At this point,Justice Scalia briefly sets out his theory of textualism.
Textualism is not strict constructionism, which Justice Scalia illustrates
with Smith v. United States,4 where the Supreme Court held that a
defendant who offered an unloaded firearm in exchange for cocaine had
violated the applicable statute by "using" a firearm during and in relation
to a drug trafficking crime.42 Justice Scalia insists that the phrase "uses

31. See id at 458 (citing Act of Feb. 26, 1885, ch. 164,23 Stat. 332).
32. Id at 459.
33. Id
34. See id. at 463.
35. Scalia, supra note 1, at 20.
36. Id at21.
37. See hd
38. See id (quoting GuiDo CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 2
(1982)).
39. Scalia, supra note 1, at 22 (citing Wi.UAM N. ESKRIE, XR., DYmAMc STATUTORY
INTERPRETATION 50 (1994) (other citations omitted)).
40. Id
41. 508 U.S. 223 (1993).
42. See Smith v. United States, 508 U.S. 223, 225, 241 (1993) (6-3 decision) (Scalia, J.,
 MAINE LAWREVIEW [Vol. 50:185

a gun" must mean "uses as a weapon," and that to interpret the phrase as
the majority did is overly literal.4"
In his essay, Justice Scalia does not extensively set out what
textualism is. Textualism appears to be a recognition that "[t]he text is
the law; and it is the text that must be observed." ' According to the
tenets of the doctrine, judges should neither pursue purposes beyond
those set out in statutory text nor use interpretation to write new law;
rather, judges should recognize that "[w]ords do have a limited range of
meaning, and no interpretation that goes beyond that range is
permissible. ' Textualism recognizes that form is inherent in "a
government of laws and not of men" and that46canons of construction, 47
such as expressio unius est exclusio alterius and ejusdem generis,
although unfortunately set forth in Latin, are really "commonsensical"
and "one indication" of meaning, although they may be overcome by
other contrary indications.48
Justice Scalia also views presumptions and rules of construction that
help determine the outcome of a case-such as the "rule of lenity,"
which resolves ambiguity in criminal laws against the government-with
skepticism. 49 He admits the antiquity of many of those rules, but
wonders "where the courts get the authority to impose them," and 50
whether judges should construe laws to mean what they "fairly say."
Given his emphasis on text as determinative of a statute's meaning,
Justice Scalia attacks the use of legislative history "as an interpretive
device."5 His position is clear: "My view that the objective indication
of the words, rather than the intent of the legislature, is what constitutes
the law leads me, of course, to the conclusion that legislative history
should not be used as an authoritative indication of a statute's
meaning."52 English and American courts, says Justice Scalia,

dissenting); see also 18 U.S.C. § 924(c)(1) (1994) (providing that whoever, during and in relation
to a drug trafficking crime, "uses" a firearm shall be held criminally liable).
43. See Scalia, supranote 1, at 24.
44. Id. at 22.
45. Id. at24.
46. The expression of one thing is the exclusion of others not expressed. BLACK'S LAW
DICTIoNARY 581 (6th ed. 1990).
47. Of the same kind. BLACK'S LAW DICTIONARY 517 (6th ed. 1990). This is usually used
when a number of terms are listed, such as cats, dogs, and other animals. The less specific term,
"other animals," is limited by the previously listed terms. Thus, other animals would probably be
pets.
48. See Scalia, supranote 1, at 26-27. Justice Scalia skewers the classic Karl N. Llewellyn
article, Remarks on the Theory ofAppellate Decision and the Rules or Canonsabout How Statutes
Are to Be Construed,3 VAND. L. REV. 395, 401 (1950), which listed canons by setting the thrust
of one against the parry of another. See id. Justice Scalia says that the canons, when examined
carefully, may be limited in application, but do not contradict each other as Llewellyn stated. See
Scalia, supranote 1, at 27.
49. See id at 27-28.
50. Id. at29.
51. Id.
52. Id, at 29-30.
1998] A MATER OFINTERPRETATION

traditionally held to this position,53 and only moved away from it in the
1920s and 1930s in order to support progressive legislation against the
previous judicial reliance upon legislative intent and canons to invalidate
that legislation. 4
Of course, to Justice Scalia, the use of legislative history removes the
inquiry from one on the text of a statute to extraneous materials around
that statute. 5 Justice Scalia cites a number of examples of the trouble
that the use of legislative history can cause, two of which are worth
noting. For the first, he cites a petitioner's brief which said the follwing:
"Unfortunately, the legislative debates are not helpful. Thus, we turn to
the other guidepost in this difficult area, statutory language."5" For the
second, he sets forth at length what must have been an uncomfortable
colloquy in 1982 between Senator Dole, then acting as the Chairman of7
the Committee on Finance of the Senate, and Senator Armstrong
Senator Armstrong was questioning Senator Dole as to whether he had
read the committee report accompanying a tax bill.58 Senator Dole said
at first that he intended the courts to take guidance from the committee
report, but was then forced to admit publicly that he did not write the
report, that probably no other senator wrote the report, that he had not
read the report in its entirety, and that the Finance Committee had not
voted on the report. 9 Senator Armstrong also asserted, correctly, that
the report could not be amended by the Senate from the floor.'
The usual response to this type of example is that most senators and
other lawmakers not only do not read committee reports but also do not
know the details of statutory text upon which they actually vote. Scalia
counters that Article I, Section 7 of the United States Constitution
requires that a statute be passed by a majority, but is silent as to whether
or not the majority has an "adequate understanding"of the statute; but,
in order for legislative history to be useful to show Congressional intent,
it must be "the basis for the house's vote."' In other words, "genuine
knowledge is a precondition for the supposed authoritativeness of a
committee 62
report, and not a precondition for the authoritativeness of a
statute.

53. See id at 30. Here, he cites as support Chief Justice Tancy, whom he earlier criticized
for witing the first Supreme Court case to use the Due Process Clause of the Fifth Amendment to
prevent the federal government from "taking away certain liberties" beyond those expressly set forth
in the Constitution. See idat 24 (citing Dred Scott v. Sandford, 60 U.S. (19 How.) 393. 450
(1857)).
54. See Scalia, supra note 1,at 30.
55. Seeidat29-31.
56. Brief for Petitioner at 20, Jettv. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989) (No. 87-
2084) (cited in Scalia, supra note 1,at 31).
57. See 128 CONG. REc. 16918-19 (1982) (cited in Scalia, supra note 1, at 32-34).
58. See id
59. See id
60. See id
61. Scalia, supra note 1, at 34-35.
62. Idat 34.
 MAINE LA WREVIEW [Vol. SO: 185

Another common argument made by those advocating the use of

legislative history is that, because Congress gives authority to committee
reports (and presumably similar legislative materials), courts must defer
to them as well.63 Justice Scalia responds by citing Article I, Section 1
of the Constitution, which provides that all legislative powers are vested
in a Congress consisting of a Senate and a House.' Justice Scalia reads
this provision to prohibit Congress from delegating legislative power to
committees, and says that only Congress as a whole can enact statutes. 65
Thus, committee reports have authority only if Congress as a whole
adopts them, which Congress does not do.66
In essence, says Justice Scalia, legislative history as practiced in
Congress has become so expansive that some portion of it can be used
to support either side of an argument on statutory construction. 67 The
use of legislative history is, for Justice Scalia, a "failed experiment," the
termination of which would result in the saving of an "enormous amount
of time and expense" by judges, lawyers, and clients.68
At this point in his essay, Justice Scalia moves from statutory to
constitutional interpretation.6 9 To him, the Constitution is "an unusual
text."7' According to Justice Scalia, "[i]n textual interpretation, context
is everything, and the context of the Constitution tells us not to expect
nit-picking detail, and to give words and phrases an expansive rather
than narrow interpretation-though not an interpretation that the
language will not bear.",7 1 Thus, when interpreting the Constitution, he
will look to the writings of contemporaries of the framers as well as to
the framers themselves, not to find the intent of the Constitution's
draftsmen but "because their writings, like those of other intelligent and
informed people of the time, display how the text of the Constitution was
originally understood."'72
Because this original understanding is important, Justice Scalia
spends some time refuting the chief argument in support of the
interpretation favoring "The Living Constitution."" This argument, in
essence, is that this kind of interpretation enables the Constitution to be
"flexible" as American society changes. To this, Justice Scalia replies
that the argument presupposes that the evolution towards flexibility
would result in fewer constitutional restrictions upon democratic
government.74 However, especially during the last thirty-five years, this

63. See il at 35. See also U.S. CoNsT. art. I, § 1.

64. See Scalia, supra note 1, at 35.
65. See id.
66. See id.
67. See id. at 35-36.
68. l at36.
69. See id. at 37-47.
70. Id at 46.
71. Id. at37.
72. Id at 38.
73. See id at41-47.
74. See id at41.
19981 A MATTER OFINTERPRETATION

type of interpretation has in fact limited the power of the government,

not expanded it. Justice Scalia then cites a series of Supreme Court
decisions which prevent government from doing what it formerly could
do. For instance, in Mapp v. Ohio, 5 the Court held that states were
prohibited from "admitting in a state criminal trial evidence of guilt that
was obtained by an unlawful search," although they were previously
permitted to do this. 6 Justice Scalia envisions future "evolving"
constitutional decisions as continuing to limit the power of democratic
government, rather than increasing that power to allow it to deal with
changed societal conditions.'
He also attacks another view of those favoring an evolving
Constitution, which is that changes in judicial interpretation of the
Constitution lead to "greater personal liberty." Justice Scalia counters
by stating that recent judicial decisions have, in fact, curtailed
constitutional protections for such liberties as individual property rights,
the right not to have the government impair a contract, and the right to
bear arms.' He admits that modem society does not value these rights,
but says that the framers of the Constitution were correct in embedding
essential rights in the Constitution which future ages might not value in
order to protect those rights. 0 As an example, he refers to Marylandv.
Craig,8 where the Supreme Court allowed a young child to testify in a
child abuse prosecution while the defendant and the judge viewed the
child's testimony over television instead of being in the same room.'
The right to confrontation, says Justice Scalia, means "face-to-face" now
and meant the same when the Sixth Amendment was adopted, and the
purpose of allowing face-to-face confrontation in a criminal trial was "to
induce precisely that pressure upon the witness which the little girl
found it difficult to endure."" The constitutional language has not
changed, says Justice Scalia; only society's view of child abuse
prosecutions has changed. To him, the Craigdecision clearly did away
with "a liberty that previously existed."'
Justice Scalia then makes his final objection to the concept of the
evolving Constitution: There is no "guiding principle" which those
interpreters follow. 5 Justice Scalia states that, "[a]s soon as the
discussion goes beyond the issue of whether the Constitution is static,
the evolutionists divide into as many camps as there are individual views

75. 367 U.S. 643 (1961).

76. Scalia, supra note 1, at 41-42 (citing Mapp v. Ohio, 367 U.S. at 655).
77. See i,
78. Id at 42.
79. See id at 43.
80. See id
81. 497 U.S. 836 (1990).
82. See id at851-57.
83. Scalia, supra note 1,at 43-44.
84. Idat44.
85. See id at 44-45.
 MAINE LA WREVIEW [Vol. 50:185

of the good, the true, and the beautiful." 6 As this, according to Justice
Scalia, is inevitable, the evolutionary method is "simply not a practicable
constitutional philosophy."8 "
Again, Justice Scalia admits that "originalists," who seek the original
meaning of the text, do not always agree about the application of that
meaning to "new and unforeseen"" circumstances, but their difficulties
are small compared to those for whom "every question is an open
question." 9 For example, Justice Scalia cites capital punishment, whose
"use is explicitly contemplated in the Constitution."" He writes:
"Under [the view of] the Living Constitution the death penalty may have
become unconstitutional [and] it is up to each Justice to decide for
himself (under no standard I can discern) when that occurs."'"
Justice Scalia finally admits that "at the end of the day an evolving
constitution will evolve the way the majority wishes."' The evil of this,
however, is that the majority "will look for judges who agree with them
as to what the evolving standards have evolved to; who agree with them
as to what the Constitution ought to be." 93 While the Nineteenth
Amendment was used to guarantee women the right to vote seventy-five
years ago, the judiciary today, by relying upon the "Living
Constitution," says Justice Scalia, becomes the "instrumentality of
change."94 The problem with this path is that it allows the majority to
interpret the Constitution as it wishes:
This, of course, is the end of the Bill of Rights, whose meaning will
be committed to the very body it was meant to protect against: the
majority. By trying to make the Constitution do everything that needs
doing from age to age, we shall have caused it to do nothing at all.9"
None of the four commentators, Professors Wood, Tribe, Dworkin,
and Glendon, deal at length with Justice Scalia's discussion of statutory
interpretation other than to summarily agree with the need to avoid
looking for subjective legislative intent when interpreting statutes.
Rather, they prefer to concentrate on legal history, constitutional
interpretation, and civil law.
In his comment, Professor Wood essentially agrees with Justice Scalia
that American judges do have extraordinary power in comparison with
judges in other Western countries; but Professor Wood proposes that this
power arose in the late eighteenth century in response to what Americans

86. Id. at 45.

87. Id.
88. Id. at 45.
89. Id. at 46.
90. Id.
91. Id.
92. Id.
93. Id. at 47.
94. Id.
95. Id.
1998] A MATER OF INTERPRETATION

felt were overly democratic, partisan legislatures.' The American

judiciary has jealously guarded its power to interpret the United States
Constitution and statutes ever since, so that this power is now "deeply
rooted in our history, and... probably not as susceptible to [Justice
Scalia's] solution as he implies."' According to Professor Wood,
"[t]extualism ...appears ... to be as permissive and as open to arbitrary
judicial discretion and expansion as the use of legislative intent or other
interpretive methods."98 He has no solution to the problem ofjudicial
lawmaking, other than "the hope for the revival of some semblance of
disinterested jurisprudence. "'
Professor Lawrence Tribe admits that he does not have a theory of
textual interpretation and doubts that "any defensible set of ultimate
'rules' exists. Insights and perspectives, yes; rules, no."'0 0 In his main
discussion, he sets forth a theory of two types of constitutional language:
constitutional language which is "concrete" and constitutional language
which "enact[s] fairly abstract principles."' 0 ' Those constitutional
provisions consisting of concrete constitutional language that are a type
of blueprint defining governmental institutions and practices, such as the
provision requiring a president to be at least thirty-five years of age,
ought to be interpreted as having a "fixed meaning" until they are
changed by constitutional amendment.0 2 However, Professor Tribe
disagrees with Justice Scalia's view that the Constitution is entirely
composed of these provisions."
On the other hand, those constitutional provisions which contain
abstract language tend to set out broad principles, leading present
interpreters to conclusions which were not part of the subjective
intentions of those adopting the constitutional language. For example,
Professor Tribe agrees that Brown v. Board of Educationt ' "correctly
interprets what the Fourteenth Amendment says (and always said)--even
though it may well defy what the amendment's authors and ratifiers
expected the amendment to do."' ' The important thing, says Professor
Tribe, is for interpreters of constitutional language to:
concede how difficult the task is; avoid all pretense that it can be
reduced to a passive process of discoveringrather than constructing
an interpretation; and replace such pretense with a forthright account,
incomplete and inconclusive though it might be, of why one deems
his or her proposed construction of the text to be worthy of

96. See Wood, supra note 2, at 49-51.

97. Id at 58.
98. I at 63.
99. IR
100. See Tribe, supra note 2, at 73.
101. Id. at 68.
102. See id. at93.
103. See id at 94.
104. 347 U.S. 483 (1954).
105. Tribe, supra note 2, at 68.
 MAINE LA WREVIEW [Vol. 50:185
acceptance, in light of the Constitution as a whole and the history of
its interpretation." °
In his comment, Professor Dworkin sees Justice Scalia, despite his
best efforts, as still entangled in the problem of legislative intent; for
Justice Scalia, in choosing among the several possible meanings of a
crucial word in a statute, must decide which meaning Congress intended.
However, Professor Dworkin agrees with Justice Scalia that what is
important is not the intention of individual legislators but of Congress
as a whole."17
Professor Dworkin then moves quickly to constitutional
interpretation, specifically to the Bill of Rights. He recognizes two
forms of possible original meaning for provisions in the Bill of Rights:
"'semantic' originalism," which means that the provisions should be
"read to say what those who made them intended to say," and
"'expectation' originalism," which means that the provision "should be
understood to have the consequences that those who made them
expected them to have."'0 8 The Bill of Rights mixes abstract and
concrete principles; thus, interpreters should not read those abstract
principles as specifically limited to the precise meaning intended by the
original drafters-even if all the drafters had agreed among themselves
on that intention, which they often did not. Rather, interpreters should
treat those provisions as containing abstract principles which must be
newly applied to contemporary situations.1' 9
In her comment, Professor Glendon, who has an interest in
comparative law, reviews the experience of European civil lawyers, who
are supposed to concentrate on interpreting statutes primarily by relying
on statutory text rather than upon judicial opinions interpreting that text.
She says that when civil lawyers were dealing with coherent, all-
inclusive legal codes, this method worked well.110 However, with the
continuing enactment of new statutes, which are hastily drafted or not
clearly related to older ones, this approach is becoming more difficult.
Professor Glendon also notes that European civil lawyers, when
studying constitutional law in American law schools, are surprised to
find that they are studying judicial opinions interpreting the Constitution
instead of engaging in a close analysis of the Constitution's text, which
is "glimpsed only in a fragmentary way."". Instead of teaching the
Constitution "from preamble to last amendment-as a design for self-
government as well as a charter of rights, and as a text whose parts
cannot be understood in isolation from one another," American law

106. Id. at71-72.

107. See Dworkin, supra note 2, at 118.
108. Id at 119.
109. See idat 122.
110. See Glendon, supra note 2, at 97.
111. See id at 100-01.
112. Id. at 107.
1998] A MATTER OFINTERPRETATION

schools have focused on various constitutional topics, such as the

commerce clause, federalism, separation of powers, and, since the
1960s, on individual rights." 3 Thus, "con lav classes have long had the
same relation to the Constitution as the Elgin Marbles have to the
Parthenon. 114
Finally, Professor Glendon notes that the "legal culture widely shared
by lawyers and judges with diverse personal backgrounds, economic
views, and political sympathies""' is a strength of the civil law, and
leads to "predictability and coherence."'"1 6 This type of legal culture is
lacking in America, and the resultant lack of predictability and
coherence has driven "many American friends of democratic and rule-of-
law values ...to espouse what most civil lawyers would regard as
excessively rigid forms of textualism..."
When Justice Scalia's essay and the resulting comments are viewed
as a whole, it appears that the difficulty in his approach to statutory and
constitutional interpretation is that he seeks certainty in textual
interpretation. He is convinced that, although fallible judges may not be
able to find it, there is one, correct interpretation of each statute and
constitutional provision which ajudge must interpret. Given the correct
method, which involves careful attention to the form and express
meaning of the text, and consideration of the context in which that text
became law, a judge can and must be able to state what the meaning of
the text is and how that meaning resolves the factual issue before the
judge. That meaning, according to Justice Scalia, is fixed at the time the
text became law. Thus, presumably, if Chief Justice Marshall was
transported from the early nineteenth century to the present, he would
hold that an early nineteenth century statute being applied to modem
circumstances has the same meaning as it had when applied to early
nineteenth century circumstances. For Justice Scalia, this certainty of
judicial interpretation is necessary in a democracy, as it ensures that
elected representatives make and change the law through constitutional
procedures, rather than allowing judges to make and change the law
through interpretive sleight of hand.
The difficulty with this search for certainty, as pointed out by William
N. Eskridge, Jr., in his book Dynamic Statutory Interpretation,is that
"the new textualists' methodology is no more objective or constraining
than other methodologies [of statutory interpretation]."' Eskridge, who
is the co-author of one of the leading texts currently used in law school

113. IdatlIl.
114. Id
115. Id at 112.
116. Id. (citing John P. Dawson, The General Clauses, Niewedfrom a Distance, 41 RABELS
ZErrscHRIFr 441,455 (1977)).
117. Id at 113.
118. ESKRIDGE, supra note 7, at 230. William N. Eskridge, Jr., is a Professor of Law at
Georgetown University Law Center.
 MAINE LA WRE VIEW [Vol. 50:185

courses on statutory interpretation," 19 criticizes several of the basic

principles of textualism, such as the arguments on the constitutional
requirements for statutory enactment, the separation of powers
argument, the "democracy-enhancing argument," as well as textualism's
refusal to consider legislative history. 2 The Constitution, says
Eskridge, sets limits on how Congress enacts statutes, but it does not set
limits on how the executive or judicial branches may interpret those
statutes."' Congress uses committee reports to aid it in lawmaking, and
there is the opportunity to criticize and correct legislative history within
the legislative process.' 2 According to Eskridge, it is better to rely on
carefully weighed legislative history than to depend upon canons of
construction, which are judicially created, pliable, and often arbitrary.' 23
Eskridge also maintains that the textualists' reliance on the "plain
meaning" of texts is illusory because "the legislative drafting process
ensures textual ambiguities, which only multiply over time" due to the
differing goals of various legislative authors and the use by lawmakers
of textual ambiguity to resolve political obstacles to enactment. 24 In
addition, the meaning of textual language depends on its factual context,
one of the usual examples being that a sign reading "No Vehicles in the
Park" does not normally exclude baby carriages. Finally, because of
differing backgrounds and perspectives, what is obvious, plain 25
textual
meaning to one interpreter is not at all obvious to another.
In place of textualism, and several other contending theories, Eskridge
advocates an interpretation based on what happens in fact, which he calls
"dynamic statutory interpretation.' 26 In essence, he says, the
interpretation of a statute evolves over time because of changing factual
contexts and the changing perspectives of its interpreters. 27 It is better
to recognize this evolution, in which statutory meaning often goes
beyond and occasionally against "original legislative expectations,"
while trying in new situations to interpret the statute so that the
"pragmatic interpretation is one that most intelligently and creatively
'fits' into the complex web of social and legal practices."'2 Eskridge
advocates using the different traditions of American law, "including
liberalism and its emphasis on individual autonomy, legal process and

119. See WILLIAM N. ESKRIDrE, JR. & PHILIP P. FRiCKEY, CASES AND MATERIALS ON
LEGISLATION: STATuTEs ANDTHE CREATION OF PUULIC POLICY (2d ed. 1995). The title shows the
influence of the common law on the study of legislation and statutes, although the text has more
non-case material in it than most.
120. See ESKRIDGE, supra note 7, at 230-38.
121. Seeid. at230.
122. See id. Indeed, Justice Scalia's quotation of the colloquy between Senator Dole and
Senator Armstrong is an example of that criticism. See supra notes 57-60 and accompanying text.
123. See ESKRIDGE, supra note 7, at 233.
124. Id at38.
125. See id. at 42.
126. Id.at 192.
127. See id at 193.
128. Id. at201.
1998] A MATTER OFINTERPRETATION

its interest in considering a plurality of viewpoints, and normativism's

insistence on justice and/or efficiency... to reexamine practical and
conventional readings of a statute."' 29 This method of statutory
interpretation does not make possible a precise prediction of a specific
interpretation of a statute, but it has the virttue of being open enough to
allow understanding and criticism of the result.
As is clear from Justice Scalia's essay and the comments upon it, we
are still without a widely accepted theory of statutory interpretation.
Justice Scalia's textualism, due to his efforts and those of other judges,
has a following but lacks majority acceptance. Whether, as Professor
Tribe maintains, we ultimately cannot come to an accepted set of rules
for statutory interpretation, or whether, at this point, the theory of
statutory interpretation is still too underdeveloped to allow for a theory
of general acceptance, Justice Scalia's essay, and the comments which
accompany it, are an enjoyable introduction to the current debate.

129. Id