• About
  • Contact
  • Staff

Law & Liberty

A Project of Liberty Fund

  • Home
  • Blog
  • Liberty Law Forum
  • Podcasts
  • Book Reviews

September 1, 2012|Richard Posner, Scalia, textualism

Posner on Scalia and Garner’s Reading Law I: Textualism and Conservatism

by Mike Rappaport|1 Comment

Richard Posner’s review of Antonin Scalia and Bryan Garner’s new book is peculiar.  There is no way to see it as other than a hatchet job – an attempt to attack the book, without balance, from every possible direction.  As with most hatchet jobs, it reflects as poorly on its author as on its target.

I say this with some regret as I believe that Richard Posner is a genius – a genius in the sense that he is capable of doing what it is hard to imagine a human being doing.  His incredible output at a high quality is just amazing.  It is not that any bit of it is so dazzling, although it is quite good; it is the incredible quantity of it at that high level.  But, of course, that he is a genius does not make him right.  Nor, as is most applicable in this case, does it mean that he does not let his passions get the better of him.

I am not sure how much to blog about this.  But as I read through the review, so much is wrong that I thought I would just start discussing it.  We will see how many posts I can write about it before tiring.  For a more systematic criticism of Posner by someone (unlike me) who has read the Scalia and Garner book, see Ed Whelan’s post (link no longer available).  I should note that I don’t agree with Scalia about everything and Posner does make some good points.  But the weaknesses of his review are pretty glaring.

Let me start with a claim that Posner makes early in the review:

He is one of the most politically conservative Supreme Court justices of the modern era and the intellectual leader of the conservative justices on the Supreme Court. Yet the book claims that his judicial votes are generated by an “objective” interpretive methodology, and that, since it is objective, ideology plays no role. It is true, as Scalia and Garner say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative.

A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text. Ignoring the limitations of foresight, and also the fact that a statute is a collective product that often leaves many questions of interpretation to be answered by the courts because the legislators cannot agree on the answers, the textual originalist demands that the legislature think through myriad hypothetical scenarios and provide for all of them explicitly rather than rely on courts to be sensible. In this way, textualism hobbles legislation—and thereby tilts toward “small government” and away from “big government,” which in modern America is a conservative preference.

There are two points worth discussing here.  First, Posner claims that textualist judges hobble legislation by insisting that legislatures “think through myriad hypothetical scenarios and provide for all of them explicitly.”  But this is not clear.  It depends on the desires of the legislature and what would help them.  Some legislatures may not trust judges to tamper with their legislation, because they believe that judges either have different values than the legislature or are not competent to determine what the legislature’s desires are and to further them.  Various progressive jurists criticized the courts in the early 20th century on the grounds that conservative judges were tampering with and undermining legislation.

Second, Posner claims that refusing to assist the legislature thereby promotes small government.  But that ain’t necessarily so.  Barry Weingast and Dan Rodriguez ask why regulatory statutes that were passed during the 1960s and early 1970s suddenly stopped being enacted.  Their explanation is that a liberal Supreme Court was interpreting these statutes, such as the Civil Rights Act of 1964, in an expansively liberal way that went beyond the desires of the median voter.  As a result, more moderate members of Congress were unwilling to enact statutes, even if they were written moderately, because they feared the rewriting that the Supreme Court would do.  If Weingast and Rodriguez are correct, in this case assisting the legislature lead to smaller government.

Of course, Posner might respond that the courts were not really assisting the legislature in these cases, they were subverting it.  But that’s the thing.  It is hard for a judge to know whether or not he is assisting the legislature when he is going beyond its words and when he has strong views about the matter at hand.  Presumably, Justice Brennan did not believe that he was undermining the legislature when he wrote United Steelworkers v. Weber.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

About the Author

Friday Roundup, August 31
This Month’s Liberty Forum: Michael Oakeshott’s Liberalism and its Rule of Law

Recent Popular Posts

  • Popular
  • Today Week Month All
  • Founding Financial Father April 23, 2018
  • Pope Francis's Mess April 24, 2018
  • Academic Freedom Won't Survive Carnival Act Universities April 25, 2018
  • Trump's Travel Ban and the Constitution April 24, 2018
  • Constitutional Amendment as a Path to Avoiding Robed Masters April 24, 2018
Ajax spinner

Related Posts

Related

Comments

  1. Shantel says

    September 23, 2012 at 8:53 pm

    Power tends to corrupt. When a mebemr of congress has the power to tip the scales in favor of a corp or a special interest, money tries to get to that politician as air trying to get back in to an evacuated bottle. Just as nature abhors a vacuum, politics abhors un-exercised power.The cause of our problem is that congress has seized powers not authorized in the Constitution.And WE are the ones that gave them that excess power.The power of democracy has corrupted the people.

    Reply

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Book Reviews

The Ford Restoration

by Kirk Emmert

Occupying the White House in unfavorable circumstances can make a President fall back on his best friend: the U.S. Constitution.

Read More

John C. Calhoun, Madisonian Manqué

by Thomas W. Merrill

His institutional innovations were geared toward preserving slavery.

Read More

Podcasts

The Solid Ground of Mere Civility: A Conversation with Teresa Bejan

A discussion with Teresa M. Bejan

Teresa Bejan discusses with us how early modern debates over religious toleration are an example of how we can disagree well.

Read More

Leading a Worthy Life in a Scattered Time: A Conversation with Leon Kass

A discussion with Leon Kass

Leon Kass discusses Leading a Worthy Life.

Read More

Eric Voegelin Studies: A Conversation with Charles Embry

A discussion with Charles Embry

What did “Don’t immanentize the eschaton!” really mean? An intro podcast on the formidable mind of Eric Voegelin.

Read More

Republican Virtue, Interrupted: A Conversation with Frank Buckley

A discussion with F.H. Buckley

The real conflict in our politics centers on reforming massive levels of public corruption.

Read More

Recent Posts

  • Academic Freedom Won’t Survive Carnival Act Universities

    Public institutions of supposedly liberal learning, which are increasingly alienating mainstream Americans, have no entitlement to public support.
    by Greg Weiner

  • Constitutional Amendment as a Path to Avoiding Robed Masters

    Tocqueville gives us good reasons to think that constitutional amendment is the best path to avoiding judicial supremacy.
    by James R. Rogers

  • Rethinking U.S. Nuclear Strategy

    Defending the entire free world requires a robust nuclear posture.
    by Matthew Kroenig

  • Pope Francis’s Mess

    Pope Francis has succeeded in making a mess for his Church.
    by Paul Seaton

  • Trump’s Travel Ban and the Constitution

    If the Supreme Court were to accept the plaintiffs' logic in Trump v. Hawaii, the judicial branch will gain new powers over defense policy.
    by Thomas Ascik

Blogroll

  • Acton PowerBlog
  • Cafe Hayek
  • Cato@Liberty
  • Claremont
  • Congress Shall Make No Law
  • EconLog
  • Fed Soc Blog
  • First Things
  • Hoover
  • ISI First Principles Journal
  • Legal Theory Blog
  • Marginal Revolution
  • Pacific Legal Liberty Blog
  • Point of Law
  • Power Line
  • Professor Bainbridge
  • Ricochet
  • Right Reason
  • Spengler
  • The American
  • The Beacon Blog
  • The Foundry
  • The Originalism Blog
  • The Public Discourse
  • University Bookman
  • Via Meadia
  • Volokh

Archives

  • All Posts & Publications
  • Book Reviews
  • Liberty Forum
  • Liberty Law Blog
  • Liberty Law Talk

About

Law and Liberty’s focus is on the content, status, and development of law in the context of republican and limited government and the ways that liberty and law and law and liberty mutually reinforce the other. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law and Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

  • Home
  • About
  • Staff
  • Contact
  • Archive

Apple App Store
Google Play Store

© 2018 Liberty Fund, Inc.

Subscribe
Get Law and Liberty's latest content delivered to you daily
  • This field is for validation purposes and should be left unchanged.
No thanks