Althouse: "The descent into social rancor over judicial decisions is largely traceable to nontextual means of interpretation..."

June 15, 2012

"The descent into social rancor over judicial decisions is largely traceable to nontextual means of interpretation..."

"... which erode society's confidence in a rule of law that evidently has no agreed-on meaning."

A quote from Antonin Scalia and Bryan A. Garner, from their new book "Reading Law: The Interpretation of Legal Texts," which is reviewed at the link above and available for sale here.

32 comments:

Eric said...: Yep. If the text doesn't mean anything, the constitution says whatever you want it to say. It could even say things like growing a plant in your closet (and never selling it) falls into the category of interstate commerce.; 6/15/12, 5:34 PM
Methadras said...: I'd like more clarity on why they use foreign law as a basis for many of our own in an age where we can clearly carve our own path without using past directives from outside national origins.; 6/15/12, 6:21 PM
Anonymous said...: Anything in the emanation of a penumbra leads one to wonder about it's relationship to the text. Odd that.; 6/15/12, 6:49 PM
Saint Croix said...: "The descent into social rancor over judicial decisions is largely traceable to nontextual means of interpretation, which erode society's confidence in a rule of law that evidently has no agreed-on meaning," the authors state. "Our legal system must regain a mooring that it has lost: a generally agreed-on approach to the interpretation of legal texts."

I'm a textualist but this is absurd. Does Scalia really think that if there were nine Scalias on the bench the American people would all be happy?

No, sorry. The reason the American people are angry with the Supreme Court is that many of us have the (correct) feeling that unelected people are ruling us, and we have no say.

Anger from the right is focused on Roe v. Wade and its infanticides. The left, on the other hand, seems motivated by a free-floating hostility to anything that resembles a corporation. But the right and the left have always been angry and annoyed at the Supreme Court, throughout history.

Scalia's "fix" is silly ("Be more like me!") The only true fix is to amend our Constitution so that our people have more say in regard to our laws. If the Court is worried about its popular legitimacy, then we should amend our Constitution so that our people can have some control over the unelected branch of the government.

We have amended our Constitution again and again to give our people more voting rights. The 15th Amendment. The 17th Amendment. The 19th Amendment. The 24th Amendment. The 26th Amendment.

Our Constitution should be amended once again, so that our people have a retention election over the Supreme Court. Every two years one of the Justices should face the American people, and that Justice should receive an up or down vote. Should he stay or should he go? If voted out of office, the other branches would fill the vacancy under the procedures set forth in the Constitution.

This Amendment would give our citizens the opportunity to study and to think about our Constitution. We would have the opportunity to affirm or deny the readings of our Constitution put forth by the judges who claim to know what our law is. And this amendment would give our people a necessary check on the unelected branch of our government.

The Supreme Court found an uneumuerated right to own slaves and an unenumerated right to kill babies. The Supreme Court clearly has a lot of power, and it can and has been a danger to our republic. The appropriate fix is not a better class of platonic guardians, but rather more respect for our republic and for the principles of popular sovereignty and a popular vote.; 6/15/12, 6:50 PM
Larry J said...: Interesting comment, Saint Croix. In my more cynical moments, I find the elected politicians in DC are the Hollywood government. They're there mostly for show. The real government is composed of the unelected, unaccountable courts and the equally unelected, unaccountable bureaucrats. There are millions of them, sucking up billions of dollars and bleeding the country dry. They enact thousands of regulations every year infliction billions of dollars in economic impacts with very little anyone can do about it. Should people be angry? Yes, IMO. We've lost control of our country. Instead of being "civil servants" (government worker is usually an oxymoron), they see themselves as our bosses.

Time to start defunding the bureaucracies. Time to starve the beast.; 6/15/12, 7:06 PM
chickelit said...: The only true fix is to amend our Constitution so that our people have more say in regard to our laws.

I disagree. Direct democracy eventually devolves into proportional representation.; 6/15/12, 7:24 PM
chickelit said...: Actually, Scalia's book looks very interesting.; 6/15/12, 7:25 PM
Saint Croix said...: Direct democracy eventually devolves into proportional representation.

Okay. Unelected dictators eventually devolves into innocent people brutally murdered.; 6/15/12, 7:31 PM
Browndog said...: I.; 6/15/12, 7:53 PM
Skyler said...: I understand Scalia's sentiment, but it hardly seems that making stuff up by judges is a new thing. That's pretty much the definition of common law.

In first day of law school you learn how ownership of property kept being justified by ancient judges making up new reasons. Then the wagon mound cases among thousands of others where entirely new theories of law are created by the courts.

I see nothing wrong with that. That is why we have courts.

The real reason for he rancor is not that judges decide law and create new theories of law, but that the government has taken on too much power and that raises the stakes for every decision. The decisions tend to side with growing government power, especially in allowing administrative law to exist with almost unchecked power.; 6/15/12, 7:53 PM
iowantwo said...: From Saint Croix
"The only true fix is to amend our Constitution so that our people have more say in regard to our laws. If the Court is worried about its popular legitimacy, then we should amend our Constitution so that our people can have some control over the unelected branch of the government."

No the solution is for the federal govt to confine itself to its enumerated powers. That includes SCOTUS. Roe v Wade was not a federal issue, and the people were doing a fine job of ruling themselves before SCOTUS inserted itself in an area that has no constitutional interaction. Citizen United you ask? Congress has no power to enact such a law. Knock the federal govt back to its strictly defined and enumerated powers and let the people return to self governance. Until FDR, the Federal govt was a pretty boring place, not much to do. That all changed when the court realized they could govern from the bench and supplant the other two branches and the people.; 6/15/12, 7:59 PM
Browndog said...: Saint Croix said...

Alot....that is fundamentally flawed

So much so, I felt compelled to comment-

A "textualist?

"THE" Supreme Court?

"our" people?

As a textualist, you would no doubt understand the meaning of words, as they were written, as they were meant to be understood when they were written (1828 Webster dictionary)

Further, you would no doubt understand that there isn't a "Supreme Court", but but an ever changing assembly of men and women appointed by any given President to sit, temporarily, on the High Court.

Further still, you'd understand that since early 20th century, law schools have taught young lawyers and judges that the Constitutions matters little, but the precedent of previous courts is the "new" Constitution...ever changing--and beyond reproach.

Lastly, from what I've read, you advocate for pure democracy--

Which is mob rule--the Founders, in their wisdom, created a republic-

Which means, I have a say, even if two of your like mind say otherwise.; 6/15/12, 8:12 PM
Saint Croix said...: No the solution is for the federal govt to confine itself to its enumerated powers.

Oh yeah, that works. Govern yourselves! We won't fire you or anything. Just be better at what you do.

It's the Happy Horseshit school of human motivation.

Are you even aware that many Supreme Court Justices do not bother to write their own opinions? Or do their own research? And they take the summer off?

It's like academic tenure, except without having to actually do any work. And, oh yeah, just for funsies, absolute power. And if you don't like people, just dehumanize them.

Basketball coaches we fire like nobody's business. Cause, you know, it's just basketball. But the powerful institution that rules our law, oh my goodness, how dare we fire them for incompetence?

Let's see if I can find a picture of a baby's head on a stick. Yeah, let's fix that injustice by wagging our finger at them on the internet and telling them to "follow the law, dummy." That'll show 'em.; 6/15/12, 8:31 PM
Ignorance is Bliss said...: Saint Croix said...

The Supreme Court found an uneumuerated right to own slaves...

Really? When was that? Link Please.; 6/15/12, 8:55 PM
Lawyer Mom said...: Golly, the Constitution might even allow, as Obama believes it does, the suspension of laws. Not a wholesale suspension of laws, mind you (not yet, anyway) but a discretionary suspension of certain laws against certain persons.

And when a president can do that, who needs Congress? Hell, when a president can do that, who needs elections?

"Effective today, we will not be prosecuting voter fraud, only the states who try to prevent it."

http://bit.ly/aFK6vm; 6/15/12, 9:02 PM
Saint Croix said...: from what I've read, you advocate for pure democracy--

Which is mob rule--the Founders, in their wisdom, created a republic

A retention election is not mob rule. Amending our Constitution so that our people have more say over our government is not mob rule.

I have heard much of this "mob rule" but I have yet to see any society that is an example of one.

What I have seen, over and over, are unelected dictators who think they are superior to people and will rule them with justice and mercy. These so-called superiors often end up on sociopathic killing sprees. Witness Justice Ginsburg and her urge to remove the anomalies from American society. Or the writings of Justice Breyer, who sounds like Dr. Mengele on a bad day.

What is republican about Roe v. Wade? What is republican about defining human beings as property? And understanding the substantive fuck-up that the Supreme Court did in 1973 does nothing to fix the procedural error--namely that we do not need and should not have a purely unelected branch of the federal government ruling our people.

The Supreme Court is not the final authority in regard to our law. What Republican thinks that? We have popular soveriengty in this country. Our Constitution specifies this, in its very first words: "We the People."

If the Constitution justifies itself by calling upon popular soveriengty--if it speaks in the name of our people--then We the People have a right to govern ourselves. And anything short of that is not a republican form of government.

“Educate and inform the whole mass of the people... They are the only sure reliance for the preservation of our liberty.”; 6/15/12, 9:06 PM
Saint Croix said...: Really? When was that? Link Please.

1857; 6/15/12, 9:09 PM
Saint Croix said...: Akhil Amar is the guy to read on popular sovereignty and our Constitution. Start here or here.; 6/15/12, 9:17 PM
Simon said...: So kindling that. That will take care of most of the transatlantic flight.; 6/15/12, 9:26 PM
Ignorance is Bliss said...: That's what I figured you were referring to. However, that's not what the court ruled. They ruled ( among other things ) that the federal government does not have the authority to ban slavery in the states.

The decision was wrong in a number of areas, both substantively and procedurally. And slavery is an abomination and I am always stunned that anyone ever considered it acceptable.

But I don't see anything in the constitution that gives the federal government the authority to tell the states what to do in this area.; 6/15/12, 9:29 PM
Ignorance is Bliss said...: Saint Croix said...

No, sorry. The reason the American people are angry with the Supreme Court is that many of us have the (correct) feeling that unelected people are ruling us, and we have no say.

I agree with this, but I think it actually supports Scalia's point. The reason we feel that the Supreme Court is ruling us is because they are not following the Constitution. If we believe that their decision was constrained by the Constitution then we would not be mad at the decision, we would be mad at the Constitution, or the part of the Constitution that was requiring the decision we didn't link. Then we could work to change that.

Like with the classic baseball analogy, we get mad at the umpire if we think he makes a bad call, but then we move on. However, if the umpire started allowing one team to get 4 strikes per out, and 4 outs per inning, then you'd see some real social rancor. That's what the court did in Roe v. Wade.; 6/15/12, 9:44 PM
Simon said...: Ignorance Is Bliss, the only caveat to add there is that the people sometimes resent decisions that are obviously correct. There is no serious argument that Snyder v. Phelps, was wrongly-decided, for instance, but many people were very unhappy about it.

Saint Croix said...
"A retention election is not mob rule. Amending our Constitution so that our people have more say over our government is not mob rule."

It may not be mob rule, but it's more democracy, and more democracy is generally bad. Above, you cited the 15th, 17th, 19th, 24th, and 26th amendments, but those aren't all alike. The 15th, 19th, 24th, and 26th amendments didn't expand the scope of democracy as an input to government, they expanded the franchise as an input to democracy. Three of them were well-taken. The 17th Amendment, by contrast, expanded the scope of democracy as an input to government, and it was one of the worst mistakes we've ever made; the amendment you propose expands the scope of democracy as an input to government and it would be a mistake too. Democracy is a terribly idea, which is why the founders rejected it. The unamended constitution is thoroughly non-democratic: We all know, of course, that the House was the only democratic part of the federal government, but more than that, the constitution restrains democratic decisionmaking both positively and negatively. It isn't a democratic document. It's a republican document.; 6/15/12, 10:40 PM
Saint Croix said...: They ruled ( among other things ) that the federal government does not have the authority to ban slavery in the states.

They ruled that a slave owner could bring his slave into a free state, and he would remain a slave. The state had no authority over you. You had a constitutonal (and unumerated) right to take your slave with you wherever you went.

Of course, the upshot of that ruling is that there can be no free states. Slavery now, slavery forever, that was Taney's opinion.

It was a legal fiasco. Utterly racist to be sure, but also utterly anti-democratic and a dishonest reading of our Constitution.

Consider that abolitionist judges sent runaway slaves back to the South, because they felt their oath to the Constitution required them to do so. Robert Cover writes an excellent book about this dilemma here. Taney violates this understanding. He has no respect for free states or their laws. He was determined to rule them into submission, to make them bend to his will. He was a racist ass. But his opinion went so far as to dictate his racist ideology to our entire country.

This is the point Justice Scalia was making when he talks about the Dred Scott case in his Casey dissent.

And slavery is an abomination and I am always stunned that anyone ever considered it acceptable.

The reason it was considered acceptable was because good people accepted it. Nice people, your friends and neighbors, your mailman, your family members all accepted it. You were surrounded by people who thought it was acceptable. And so it was accepted. Pretty much like abortion is today.; 6/15/12, 10:42 PM
Simon said...: "The reason it was considered acceptable was because good people accepted it. Nice people, your friends and neighbors, your mailman, your family members all accepted it."

Religious, even; I'm told that at least one order (I don't want to say which because I'm not sure it's true) bought and sold slaves despite the Church's disapproval and ultimately condemnation.; 6/15/12, 10:54 PM
Q said...: I understand Scalia's sentiment, but it hardly seems that making stuff up by judges is a new thing. That's pretty much the definition of common law.

In first day of law school you learn how ownership of property kept being justified by ancient judges making up new reasons.

We don't live in ancient times, and our judges, unlike those of the past, are not supposed to go about making "common law".

The real reason for the rancor is not that judges decide law and create new theories of law, but that the government has taken on too much power

The reason why the government has taken on too much power is precisely because of judges concocting those "new theories of law" which you seem to find so agreeable and benign. In many case judges have ordered the other branches of government to raise taxes and enact laws in order to realize the "new theories of law" which the judges have come up with.; 6/16/12, 12:23 AM
Q said...: Lastly, from what I've read, you advocate for pure democracy ..

Which is mob rule.."

Retention elections for Supreme Court justices does not constitute "pure democracy" or "mob rule".

more democracy is generally bad.

You must believe that The American Revolution was a very bad thing then.

Democracy is a terribly idea, which is why the founders rejected it.

They did not reject it. They embraced it. If they wanted to reject it they could have established a monarchy in America. Instead they established a democratic republic.; 6/16/12, 12:35 AM
Q said...: They ruled ( among other things ) that the federal government does not have the authority to ban slavery in the states.

The decision was wrong in a number of areas, both substantively and procedurally. And slavery is an abomination and I am always stunned that anyone ever considered it acceptable.

Slavery being an abomination is a very different thing from slavery being unconstitutional. Nothing in the pre-Civil War Constitution made slavery unconstitutional. In fact the plain text of the document made it clear that slavery was "normal".; 6/16/12, 12:42 AM
iowantwo said...: It's like academic tenure, except without having to actually do any work. And, oh yeah, just for funsies, absolute power. And if you don't like people, just dehumanize them.

So wrong. SCOTUS has the power the people have allowed them to take. The people, though their representatives can overturn any SCOTUS ruling. What power has the court to enforce thier will?; 6/16/12, 5:49 AM
Saint Croix said...: What power has the court to enforce thier will?

You're citing Hamilton and his theories and I'm saying you should look at our actual experience. The Court dictates a legal order and people follow it without question. All the lower Courts have sworn an oath to follow the Constitution. Yet in practice, what do they do? Follow in absolute obediance whatever their superiors say. Our judicial system is rather like the military in that regard.

Of course, the Supreme Court has no army at its disposal. Unlike the Communist thugs in China, the Supreme Court cannot actually force a woman to abort a baby.

But the Court can strip people of all legal protections. It can say to a class of people, "you are outside the law and we will not recognize you or any rights you may have." This legal non-person status is the philosophical basis of horror regimes like the Nazi Holocaust or slavery.

Once the Court stripped the baby of any legal protections, ordinary citizens stepped up and started offering baby-killing services. These businesses advertise in the yellow pages. They can't be punished, and even basic health regulations have to be run by our unelected overseers. In many places abortion clinics are not even examined for health code violations. (Google "Kermit" and "house of horrors"). You can thank the Ivy Leaguers who wrote Casey for those deaths and mutilations. It's a direct cause-and-effect relationship.

I'm sorry but I just don't have any patience for somebody who argues the Supreme Court is weak and powerless. Hamilton's writings in this regard are as stupid as his belief that the President should sit for life. God knows what our republic would be like if Hamilton had won that argument. He actually wanted to put a dictator in charge of our military. It's bad enough that we have nine dictators in charge of our legal system.; 6/16/12, 10:39 AM
Simon said...: Q said...
"You must believe that The American Revolution was a very bad thing then."

I spoke imprecisely. I meant that more democracy is generally--not invariably--bad when one starts from the baseline of the American constitution. Obviously more democracy is good if one is starting from the baseline of Ancient Egypt. I thought that the limiting context of the remark was fairly implied.

"[The Founders] did not reject [democracy]. They embraced it. If they wanted to reject it they could have established a monarchy in America. Instead they established a democratic republic."

That statement is astonishingly ignorant. If the framers had "embraced" democracy, one might think that they would have created a democracy; they did not. The system that they created had three branches of government, and only one half of one of those branches, the House of Representatives, was elected in anything resembling a democratic manner. The other half of that branch, the Senate, wasn't. The President wasn't. The federal courts weren't. Moreover, the scope of the federal government was undemocratically limited in two ways: No matter what the people wanted the federal government to do, its powers were affirmatively limited by its mandate, its scope limited to "few and defined" areas, and negatively limited by judicially-enforceable personal rights. The framers bequeathed us a republic; it might fairly be argued that it was more democratic, comparative, than other systems of government existing at the time, but whatever such a system might be called--I call it the best systemof government yet conceived by man--it cannot in any meaningful sense be called democracy, by the standards of either the time or today.

Several years ago, Justice Breyer, who leaned very different points from Hart & Sacks' legal process materials than did Scalia and I, had a very silly little book, in which he contended that the Constitution should be interpreted to facilitate its "primarily democratic nature." The Yale Law Journal review of the book by Judge Posner, who learned nothing at all from Hart & Sacks, could barely suppress the guffaw: "[T]he structure is not 'primarily democratic.' It is republican, with a democratic component. The Constitution’s rejection of monarchy (no king), aristocracy (no titles of nobility), and a national church (no religious oaths of office) was revolutionary; but the governmental structure that it created bore no resemblance to that of ancient Athens and was, and remains, incompletely democratic." To my mind, pace Scalia, most of the scope-of-government problems that we face today flow from an effort to make it more democratic: The Seventeenth Amendment, which was then and remains today a terrible mistake that has to go.; 6/16/12, 11:01 AM
Saint Croix said...: I'm rather unnerved when people have no response to a photograph of infanticide. Aren't you upset? Why aren't you upset? Are you waiting for an authority figure to tell you it is wrong? If Walter Cronkite was outraged, you would be outraged?

I've noticed liberals love public service announcements. They love NPR and they love PBS. By God liberals would be shocked if Republicans put a Republican in charge of NPR. Put Dennis Miller in charge of NPR. Liberals would shit themselves.

I need to work on my calm voice. If I had a calm NPR voice, I could simply tell people that infanticides are happening, and it would be accepted.

Imagine pro-life messages put out into the public square, paid for by our tax dollars. It would be like the public campaign to stop smoking. "You see this baby's head on a stick? You want to avoid that."

We're not going to see that, of course, because the pro-life movement is a grassroots movement. It's a bunch of upset little people. The powerful people are not upset and do not want to revolt or rebel or shake up our institutions.; 6/16/12, 11:22 AM
Saint Croix said...: Geez, St, Croix, we're just tired of your rant.

I get tired of my rant, too! But when I suggest a procedural fix, a retention election over Supreme Court Justices, people start jumping up and down about mob rule and how disaster will strike us all.

So I get sidetracked from the procedural discussion to my belief that disaster has already struck. I'm like, isn't the baby's head on a stick proof that there's a problem with the unelected branch of our government? Apparently not.

Baby head on a stick = no comment.

Retention election of Supreme Court Justices = sky is falling! Oh my god, anarchy, anarchy!; 6/16/12, 1:50 PM