For those who have missed it, Judge Richard Posner has published a scathing critique of Scalia’s new book, Reading Law: The Interpretation Of Legal Texts. The Scalia book has received comments from many in the legal field. There have been several responses to Posner’s criticism (many are posted at The Volokh Conspiracy). Read them all at your own peril.
In amongst all of the claims and counterclaims, the following from Easterbrook’s foreword to the Scalia book really stood out for me.
Judge J. Harvie Wilkinson III has argued that because the historical analysis in Heller is (from the standpoint of advocates of a constitutional right to own handguns for personal self-defense) at best inconclusive, judicial self-restraint dictated that the District of Columbia’s ordinance not be invalidated. His argument derives new support from a surprising source: Judge Easterbrook’s foreword to Scalia and Garner’s book. The foreword lauds the book to the skies, but toward the end it strikes the following subversive note: “Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption under-stood those words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably.” When that happens, Easterbrook continues, the courts should “declare that meaning has been lost, so that the living political community must choose.” The “living political community” in Heller consisted of the elected officials, and the electorate, of the District of Columbia.
Easterbrook goes on: “When the original meaning is lost in the passage of time…the justification for judges’ having the last word evaporates.” This is a version of the doctrine of judicial self-restraint, which Scalia and Garner endorse by saying that a statute’s unconstitutionality must be “clearly shown”
Linguistics, for various reasons, has become an interest in our house for the last few years. Language has always held an interest for us, as well as history. Reading the history of the Constitution, it is clear that its meaning was being debated almost before the ink was dry. Thus, original meaning has always seemed troublesome to me. The textualists had always seemed on firmer ground. However, the more we have learned about language, the more I find myself agreeing with the sentiments expressed above by Easterbrook. As fellow blogger (?) MI has noted……
“The past is a foreign country: they do things differently there.”
The more history I read, the more this makes sense.