More on the Absurdity Rule: Amar, Scalia and Garner

Over at the Democracy Blog, Akhil Amar reviews Justice Scalia and Bryan Garner’s book on Reading Law.  Amar argues that Scalia and Garner adopt too strong a textualism, criticizes them for misreading William Blackstone’s absurdity canon, and argues that the Vice President cannot preside at his own impeachment trial.

As readers may remember, I myself have argued that the Vice President cannot preside at his own impeachment trial.  I founded that result on a reading of the absurdity canon, although I also thought that there was something to be said for the view that a trial may not refer to a proceeding where the judge and defendant are the same person.  See here.

While Amar argues that Scalia and Gardner misread Blackstone, Ed Whelan (link no longer available) and Mike Ramsey defend Scalia and Garner of the charge, claiming that they are not basing their version of the absurdity doctrine on Blackstone.  I shall leave to others whether Amar or Whelan and Ramsey are  right about this.

Instead, let me say that I agree with Amar that Blackstone had a broader version of the absurdity doctrine than Scalia and Gardner recommend.  The question though is whether Blackstone’s doctrine is the proper approach to interpreting the Constitution.

My own view – that of Original Methods Originalism – argues that the Constitution should be interpreted based on the interpretive rules that would have been applied to it at the time of the Constitution.  There is no doubt that Blackstone’s interpretive approach was very influential at that time, but I believe that a more textualist version of Blackstone was the dominant approach when the Constitution was enacted.

Departing from the text of a law was common in England during the 16th and 17th centuries.  But beginning in the 18th century at approximately the time of the Glorious Revolution, a movement towards a more textualist approach arose.  This was in part due to an increasing separation of powers.  See here.

Blackstone wrote in 1765, whereas the Constitution was enacted nearly 25 years later.  So the question is what the interpretive rules were at that time.  My sense is that they were more textualist than Blackstone’s but less so than Story’s version in 1833.  Moreover, because the Constitution adopted a stricter separation of powers than the English constitution did, it also made sense to interpret it with more textualist interpretive rules.

How then should the absurdity rule have been understood?  My best guess is that is that Chief Justice Marshall’s statement in 1819 in Sturges v. Crowninshield states the correct rule.

Although the spirit of an instrument, especially of a constitution, is to be respected no less than its letter, yet the spirit is to be collected chiefly from its words.  It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation.  Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words, is justifiable.  But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.

As I have said about this in the context of the Vice President presiding at his own impeachment trial, “Marshall, I think, is being a bit colorful here, but the point is clear: to infer that the Framers did not intend what they said, one would have to conclude that nearly everyone would agree that the Vice President should not be able to preside at his own impeachment trial.”

In the end, then I stand somewhere between Amar and Scalia and Garner, and between Blackstone and Story, with Chief Justice Marshall’s moderate version of the absurdity rule.

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).

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  1. Colonel Travis says

    I just got this book and hadn’t made it to the Absurdity chapter, but skipped ahead to it after reading about this brouhaha. Seems to me that Whelan and Ramsey are correct in their criticism of Amar. Not a fan of people who assume what others think and then base an argument off of that supposition, which is what Amar did several times in his review. If you want to criticize what’s in the book, criticize what’s actually in the book.

  2. Andrew says

    I think this whole fuss about the Vice-President is itself absurd.

    The Vice-President is free to recuse himself, just like SCOTUS judges can when they have a conflict of interest. The decision is ultimately up to the Veep, just like it’s up to each SCOTUS judge.

    If the Veep declines to recuse when he himself is on trial, then Senators are free to take that as an indication of guilt. This provides a check on the Veep’s discretion whether to recuse, and is a much greater check than exists upon SCOTUS judges who have conflicts of interest, as far as I know.

  3. Deonte Reyes says

    Isn’t this one the reasons why we have a President Pro- tempore in the senate to perform the duties of the president (i.e vice president) in his absence, whether due to impeachment or some other incapacity?

    I mean to me this seems the most logical (and maybe textual) understanding of the “Absurdity Rule”, also it conforms to the traditional maxim that “no man should be judge in his own cause.”

    • Andrew says

      Here’s another maxim: “an eye for an eye.” But no one thinks the Supreme Court should read that maxim into the Constitution, or should enforce that maxim by striking down laws that do not conform with that maxim.

      Nothing in the Constitution says or hints that a person cannot preside over his own trial.

      • Deonte Reyes says

        Yes, but the “no man should be a judge in his own cause” is a Common law maxim , and common law courts have always recognized it that’s why when justices have some personal interest in a case they recuse.

        • Andrew says

          Can a justice be forced to recuse by the other justices, either on constitutional grounds or some other grounds? Has that ever happened?

  4. David Upham says

    If you see this comment, how would you and Professor McGinnes account for Marshall’s less strong absurdity rule set forth in the Dartmouth College cases (which has intrigued me for years), where Marshall argues that marriage is not a “contract” but a corporate charter is, by setting forth this rule: “”But although a particular and a rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for excluding it can be given. It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go further and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception. The case, being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd or mischievous or repugnant to the general spirit of the instrument as to justify those who expound the Constitution in making it an exception.”

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