In the course of the last three
decades, through a multitude of opinions on a diverse array of topics, Scalia forged a distinctly personal approach to statutory
It is an approach that comprises a number of
different — and at times, unrelated — methods:
-- an antipathy
towards legislative history
-- a fondness for dictionaries (whereas Grice held an opposite view: "I don't give a hoot what the dictionary says" "And that's where you make your big mistake"), and
-- a rejection
Each of these methods has been rigorously criticised in
a growing body of literature in the philosophy of law.
In an attempt to respond to his critics, Scalia co-authored with B. Garner an essay on statutory interpretation.
With its series of canons and anti-canons,
the essay, much like Grice's Way of Words [WoW] is meant to provide the one true, correct approach
to interpreting statutes.
The authors state that their methodology is
the normal, natural way of understanding anything that has been
said or written in the past.
Needless to say, this claim has not been taken at face value.
Taking Reading Law as our point of departure, we aim to mount a
comprehensive critique of Scalia’s jurisprudence that has not
yet found a place in legal literature.
We attempt to bring together the
diverse aspects of his approach to statutory interpretation, as
evidenced through his judicial and extra-judicial writings — that is,
-- ANTONIN SCALIA AND BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS. William N. Eskridge, The New Textualism and Normative Canons, 113 COLUMBIA LAW REVIEW --
-- original public meaning
-- rejection of legislative history,
traditions, linguistic canons,
-- the rule of lenity,
-- the use of dictionaries,
rejection of balancing tests and overall judicial minimalism — into one
coherent framework grounded in a normative vision of the legal
Our approach necessarily involves identifying some
pronouncements as mistakes and rejecting them as inconsistent, as
well as attributing philosophical positions to Scalia that he
himself does not represent to hold.
Nonetheless, our approach tries to
provide the best possible justification for Scalia’s overall
approach to statutory interpretation, taken as a whole.
We also hope to
clarify those aspects of Scalia’s theory (e.g., the use of
dictionaries) that might at first blush appear to be ambiguous or
susceptible to more than one interpretation, by grounding his theory
in a distinct normative vision.
We state our argument at the outset: Scalia’s approach to
statutory interpretation rests upon his belief in a "thin" concept of the
rule of law, that is, generally worded rules ought to be applied
prospectively and impartially across the board.
On the flip side of
this coin, Scalia adopts a philosophy of judicial minimalism — that is,
leaving as small a role as possible for judicial discretion.
And, as a
corollary, Scalia's theory of precedent is purely "pragmatic" in nature.
normative values that justify this approach are twofold.
protection of laws.
Second, predictability and certainty.
Furthermore, while Scalia occasionally doffs his hat to popular
sovereignty and the separation of powers, neither of these can do the
intellectual work that is required for him to justify his approach.
Even if they can, he doesn’t do utilize them to that end.
In sum, the
bulwark of Scalia’s theory is the formal, analytic, rule of law and the
values that it serves.
Lastly, we shall also examine how the Scalian vision is
undergirded by a particular deep idea of liberty (or as Grice would prefer, 'freedom from') that was originated
and defended by the noted political thinker Friedrich Hayek.
While the arguments in this essay are closely focused upon Scalia’s jurisprudence, they seek to make a larger point.
Whether it is Scalia, Breyer, Eskridge,
Ronald Dworkin, or someone else, no approach to statutory
interpretation is self-explanatorily correct to the exclusion of others.
Rather, it depends upon certain deeply held normative beliefs about
the basic purpose of the legal enterprise.
therefore, are not subject to empirical verification or falsification in
the simple sense.
They are simply appeals to what the interpreter in
question finds most valuable about law.
Yet one will not be in a
position to choose between them (or, if neither, then even from the
many approaches that occupy the spectrum between them) without examining their underlying normative/political accounts (whether
articulated or not).
This is because it is those accounts that determine
the concrete interpretive approaches in each case. It is in this sense
that statutory interpretation is deeply and pervasively political (as
opposed to the evident—and superficial—connections between a
judge’s political stance and the outcomes of cases), and this is what
justifies the title of the Article: the politics of statutory interpretation.
In order to identify the normative values underlying Scalia’s vision of statutory interpretation, let us begin by listing the
two major concrete aspects of his approach to statutes: textualism
(and its corollary: the rejection of legislative history) and original
public meaning (and its corollaries: the use of dictionaries and
deference to tradition).
In "A Matter of Interpretation", Scalia argues that a text
must be understood “to contain all that it fairly means . . . words have
a limited range of meaning, and no interpretation that goes beyond
that range is permissible.”
It is not my claim here that Justice Scalia
is only concerned about the meaning of words, and ignores context.
Indeed, on the page immediately preceding this observation he also
says, while discussing scriveners’ errors, that “one can give the totality
of the context precedence over a single word.”
What is crucial to
note here, however, is that Scalia operates with a very specific
notion of context.
Context is to be gleaned only from within the
totality of the words used in the statute (or at best, associated statutes)
and not beyond.
In so doing so, we suggest that Scalia very self-consciously
selects one theory of communicative meaning over another.
semantic — or sentence or expression meaning— over pragmatic or utterer's meaning as forming
the basis of his interpretive theory.
The two phrases are "terms of art" (and “pragmatic,” especially, is not to be confused with its use in
The roots of this distinction lie deep in linguistic
philosophy, but the following example ought to make things clear.
Imagine that you are standing by the side of a high way, a car pulls up besides you, and the driver asks you:
SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 24
(1997) (emphasis added).
5. Id. at 21.
6. Begier v. IRS, 496 U.S. 53, 67 (1990) (Scalia, J., concurring); Taylor v. United
States, 495 U.S. 575, 603 (1990) (Scalia, J., concurring); Fort Stewart Schs. v. FLRA, 495
U.S. 601 (1990) (Scalia, J.); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 738–39 (1989)
(Scalia, J., concurring).
528 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 42:3
“Where is the nearest petrol
You direct him to the closest, physically located petrol
pump, which you know to be closed on that evening.
correctly interpreted his question?
Semantic—or sentence—meaning would tell you that you have
correctly interpreted this question.
You were asked about the
location of a petrol pump.
You provided the location of a petrol
pump. A closed petrol pump is as much a petrol pump as an open
A pragmatic theory of meaning, however, holds that the
circumstances under which the question was asked makes it very clear
that what was meant to be asked—the meaning of the utterance—was
directions to an open petrol pump. What you did by directing the
driver to a closed petrol pump was, in essence, misunderstanding the
meaning of this question, which must be deduced not only from the
linguistic content of his utterance, but the non-linguistic
circumstances that surround it.
So, if on the other hand, a researcher
doing a headcount of all the petrol pumps in the area asked the
question, it would make perfect sense to direct him to the closed
petrol pump. In other words, the meaning of a linguistic utterance is
at least partially determined by its non-linguistic context.
This, then, is the basic thesis of the theory of pragmatic meaning.
Non-linguistic context must be taken into account in the
determination of the meaning of an utterance, and we have seen—
and as we shall continue to see—in the context of legal interpretation,
it is a theory that Scalia rejects.
In "Reading Law", Scalia he makes it
abundantly clear that meaning is to be determined from the
“historical associations” carried by a word (or a phrase) and by the
“immediate syntactic setting” (that is, the words that surround it in a
The inquiry, thus, is limited to the associations
carried by the words. To return to our petrol pump example,
This example is from HERBERT PAUL GRICE, STUDIES IN THE WAY OF WORDS -- "Logic and Conversation", Harvard, 1967.
A: I'm out of petrol.
B: There's a garage round the corner (+> open, and with petrol to sell).
8. A clarification: I do not claim here that Justice Scalia would hold that, in the
petrol pump example, the first interpretation is the correct interpretation.
sensibly hold that position—indeed, the absurdity of the example has led some scholars to
argue that the “full linguistic content” of an utterance must be derived using pragmatic
methods. See, e.g., Andrei Marmor, The Pragmatics of Legal Language, 21 RATIO JURIS
423, 437 (2008).
Our point is that in restricting himself to only the linguistic context of the
statutory utterance (which would include considerations of how language is used in
everyday contexts, as evidenced by Scalia’s dissent in Smith v. United States, infra
note 15), he is transplanting the methods of semantic interpretation in ordinary conversation
into the legal context—and, as I shall subsequently argue, this approach is justified by
9. SCALIA & GARNER, READING LAW, supra note 1, at 33.
Spring 2015] POLITICS OF STATUTORY INTERPRETATION 529
meaning would be determined by the historical associations that go
with “petrol pump” (i.e., a particular place with a particular use) and
the sentence it is in, but not the (non-linguistic) circumstances under
which it was spoken.
Consider also his defense of the rule of lenity.
not argues that it is something the legislature intends or is a value that
ought to play a role in judging, but that it has become so ingrained in
the legal system that it “must be known to drafter and reader
alike . . .”10 The use of the word “must” here is, obviously, a way of
deeming (that is, a legal fiction), and in this way, Justice Scalia reads
the rule of lenity into statutes by making it inseparable from their
meaning. In effect, he contends that all relevant parties at all times
know that lenity is the background interpretive framework.11 This is a
clear disavowal of specific (non-linguistic) contexts under which
statutes are produced (e.g., a possibly clear legislative indication that
the rule of lenity is not intended to apply) in favor of attributing a
timeless, acontextual (by ‘acontextual’ here I mean limiting context to
within the text, and reading in the rule of lenity into that textual
context) meaning to the words and phrases of a statute.12
These principles are also visibly at work in Justice Scalia’s
defense of using various linguistic canons that the legislature itself
may or may not use. He justifies ejusdem generis on the ground that
it “parallels common usage,”13 and expressio unius is applied because
that is “how people express themselves and understand verbal
expression.”14 Once again, these ideas of “common usage” and
general understanding are used to infuse semantic content into words
when juxtaposed together to form sentences.
To take an example, the disagreement between the majority and
Justice Scalia in Smith v. United States15 is a classic illustration of
semantic meaning at work. The question in that case was whether a
drug dealer who sells his gun in exchange for drugs “uses” his firearm
“in relation to” a drug-related crime.16 The majority cited a number of
dictionaries to establish the principle that the word “use” had a wide
10. Id. at 31 (emphasis added).
12. This is one way to understand the great respect that Justice Scalia accords to
tradition. Practices that are deeply rooted in the nation’s traditions (e.g., the rule of
lenity) form part of the interpretive background for precisely the reasons that we have
outlined in the text.
13. SCALIA and GARNER, READING LAW, supra note 1, at 199.
14. Id. at 170.
15. Smith v. United States, 508 U.S. 223 (1993).
16. Id. at 225.
530 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 42:3
ambit, and that when juxtaposed with an item, did not only refer to its
most common use (that is, using a firearm by discharging or
threatening to discharge it in furtherance of a violent crime).17 Scalia dissented, holding that the ordinary meaning of “use” referred
to its most natural use in the context contemplated.18 So, for instance,
he observed, “[t]o use an instrumentality ordinarily means to use it
for its intended purpose. When someone asks “Do you use a cane?”
he is not inquiring whether you have your grandfather’s silver
handled walking stick on display in the hall; he wants to know
whether you walk with a cane.”19
Thus, the disagreement centers upon the meaning of the word
“use” as reflected in general, non-context-specific linguistic usage.
Justice Scalia does not contemplate, for instance, a situation in which
the same question is asked in a conversation about home decoration,
and whether, given legislative history, this was the sense in which the
legislature was asking the question. In other words, he did not ask
what, specifically, was the non-linguistic context in which the
legislation was drafted. Analyzing the Smith disagreement, after
criticizing the majority opinion, Scott Soames writes about Justice
Scalia is wrong in claiming that the ordinary meaning
of the phrase excludes uses of firearms for sale or
trade. The ordinary meaning is silent about the
manner of use. Thus, when the phrase occurs in a
sentence, the resulting assertion must be completed—
either by the content provided by an explicit
phrase . . . or by pragmatically supplied content from
the context of utterance . . . since, the latter option was
employed by the Congress, the job of the Court was to
infer what Congress asserted from the incomplete
semantic content provided by the statutory language.20
As an example of what such an inquiry would look like, consider
the last paragraph of the majority opinion:
17. Id. at 228231.
18. Id. at 242 (Scalia J., dissenting).
19. Id. (emphasis added).
20. SCOTT SOAMES, Interpreting Legal Texts: What Is, and What Is Not, Special
About the Law, in PHILOSOPHICAL ESSAYS, VOL. 1 403, 414 (2008) (emphasis added).
Spring 2015] POLITICS OF STATUTORY INTERPRETATION 531
When Congress enacted the current version of §
924(c)(1), it was no doubt aware that drugs and guns
are a dangerous combination. In 1989, 56 percent of
all murders in New York City were drug related;
during the same period, the figure for the Nation’s
Capital was as high as 80 percent . . . the fact that a gun
is treated momentarily as an item of commerce does
not render it inert or deprive it of destructive capacity.
Rather, as experience demonstrates, it can be
converted instantaneously from currency to cannon.21
This paragraph provides the beginnings of pragmatic linguistic
reasoning because it addresses the dispute about whether the
ordinary meaning or the full range of meanings of the word “use”
should prevail, given the non-linguistic context in which the word was
used (recall our petrol pump example). Naturally, it is almost
unavoidable that such an approach would refer to legislative history,
an approach that Justice Scalia utterly rejects.
A contrary example is Muscarello v. United States,
22 where the
question was whether keeping a gun in the glove compartment of
your car amounts to “carrying” it.23 The majority accepted that
“carry” had a broad meaning that would include carrying something
in a car as well as a narrow meaning that was limited to carrying
something on your person.24 Again, after surveying a bewildering
diversity of linguistic sources, the majority then observed:
From the perspective of any such purpose (persuading
a criminal “to leave his gun at home”) [gleaned from
the legislative history] what sense would it make for
this statute to penalize one who walks with a gun in a
bag to the site of a drug sale, but to ignore a similar
individual who, like defendant Gray-Santana, travels to
a similar site with a similar gun in a similar bag, but
instead of walking, drives there with the gun in his car?
How persuasive is a punishment that is without effect
until a drug dealer who has brought his gun to a sale
(indeed has it available for use) actually takes it from
the trunk (or unlocks the glove compartment) of his
21. Smith, 508 U.S. at 240 (O’Connor, J.).
22. Muscarello v. United States, 524 U.S. 125 (1998).
23. Id. at 126.
24. Id. at 128131.
532 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 42:3
car? It is difficult to say that, considered as a class,
those who prepare, say, to sell drugs by placing guns in
their cars are less dangerous, or less deserving of
punishment, than those who carry handguns on their
Once again, we see that the majority endeavors to select one
meaning out of multiple possible meanings by trying to understand
what would make sense, given the non-linguistic context in which the
utterance was made. Justice Ginsburg’s dissent, by contrast (in which
Justice Scalia joined), is far more linguistically oriented, although it
too refers—if only obliquely—to the pragmatics of the situation:
It is reasonable to comprehend Congress as having
provided mandatory minimums for the most lifejeopardizing
gun-connection cases (guns in or at the
defendant’s hand when committing an offense),
leaving other, less imminently threatening, situations
for the more flexible Guidelines regime. As the Ninth
Circuit suggested, it is not apparent why possession of
a gun in a drug dealer’s moving vehicle would be
thought more dangerous than gun possession on
premises where drugs are sold . . .26
A. Corollary I: Semantic Meaning and the Faithful Agent Theory
The first important corollary of this theory is that it is
inconsistent with the faithful agent thesis, advanced by scholars who
also claim adherence to textualism.27 According to the faithful agent
thesis, law is a form of communication; the legislature communicates
certain rules and standards that constitute the law.28 Judges are
faithful agents of the legislature, with their task being to faithfully—
i.e., accurately—interpret (i.e., determine the meaning of) the
25. Id. at 133 (Breyer, J.) (emphasis added).
26. Id. at 145 (Ginsburg, J., dissenting). This shows that Justice Scalia is not a
semantic absolutist; there are times that he does adopt the pragmatics of meaning.
Broadly, however, his insistence on limiting himself to the linguistic context (words,
sentences, associations) and his rejection of non-linguistic resources such as legislative
history put him—at least presumptively—in the semantic camp.
27. John Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1
28. Id. at 5. See also Richard A. Posner, Legal Formalism, Legal Realism, and the
Interpretation of Statutes and the Constitution, 37 CASE W. RES. L. REV. 179, 189 (1986).
Spring 2015] POLITICS OF STATUTORY INTERPRETATION 533
communicative utterances of the legislature.
29 However, as our petrol
pump example demonstrates, if legal interpretation is about accurate
determination of the meaning of a communicative utterance issued by
a speaker, then it is the pragmatic—and not semantic—theory of
meaning that will yield the correct answer. And indeed, Justice Scalia
understands this because he makes the specific claim that the judges
are not faithful agents of the legislature, but faithful agents of the
Specifically, in fact, he goes so far as to concede—when analyzing
the presumption of consistent usage as a linguistic canon—that this is
not how the legislature tends to draft its statutes.31 This is a clear
statement against the idea that courts are the faithful agents of
B. Corollary II: Rejection of Legal Positivism
Although perhaps not of much practical significance, it is also
interesting to note that Justice Scalia’s theory of meaning is in tension
with traditional legal positivism.32 Eschewing complexities, traditional
legal positivism holds that the content of law is determined by social
facts—in particular, facts about what the authority (here, the
legislature) has communicated in a particular case.33 Thus,
determining the content of law means an inquiry into the full
linguistic meaning of an authoritative utterance, an inquiry that must
therefore involve pragmatics.34 As we shall see subsequently, Justice
Scalia is not a positivist in the traditional sense not just because he
doesn’t treat the interpretive inquiry as an instance of recovering full
linguistic meaning, but also because his grounds for doing so are
normative35—something that the positivist school of thought is
committed to deny.36
30. SCALIA & GARNER, READING LAW, supra note 1, at 138 (“Courts are not agents
of the legislature but agents of the people”).
31. Id. at 170.
32. By legal positivism, I refer here to the school of legal philosophy, whose
traditional representatives are taken to be H. L. A. Hart, Joseph Raz, and—more
recently—Andrei Marmor and Scott Shapiro, among others.
33. See generally JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND
MORALITY (2d ed. 2009).
34. This is the point that Scott Soames and Andrei Marmor make. See generally
SOAMES, Interpreting Legal Texts, supra note 20; Marmor, The Pragmatics of Legal
Language, supra note 8.
35. As William Eskridge points out, in Justice Scalia’s jurisprudence, there seems to
be a continuous toggling back and forth between facts and norms. William N. Eskridge,
534 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 42:3
1. Justification I: Separation of Powers
How, then, does Justice Scalia justify textualism and semantic
meaning? Earlier on in this Article, we saw some indications that he
considers it to be a conceptual truth, simply entailed in the meaning
of “meaning”—but also, for various reasons, we noticed that this
justification is unsatisfactory. And indeed, a closer look reveals that
Justice Scalia’s theory of meaning is undergirded by definitively
Justice Scalia’s primary argument justifying his interpretive
theory is that it is mandated by the constitutional separation of
powers found in Articles I through III.37 According to Justice Scalia,
the Constitution clearly places the task of lawmaking upon
legislatures, and that of interpreting the law upon judges.38 Any
theory other than a textualist theory would violate this mandate by
vaulting judges into the domain of lawmaking.39
The flaw with this defense, however, is that the Constitution—
and its division of powers—imposes no particular interpretive theory
upon judges.40 Justice Scalia’s argument is circular because not only
does he argue that only textualism is consistent with a separation of
powers that assigns the task of lawmaking to legislatures, but at the
same time he uses textualism to come to a conclusion of what law has
been made by the legislature. Clearly, however, this will not do: If
textualism is faithful to the scheme of separation of powers that is
envisaged by the Constitution, then we first need to know how we are
to understand the responsibilities of lawmaking and lawinterpretation
that the Constitution separates, and we cannot invoke
textualism for that purpose. Professor Tribe makes the point in
Nino’s Nightmare: Legal Process Theory as a Jurisprudence of Toggling Between Facts and
Norms, 57 ST. LOUIS U. L.J. 865 (2013).
36. Lest positivists argue that I am holding them to too high a standard: it is not the
case that positivism denies any role to moral and normative arguments in legal analysis.
Positivism does argue, however, that these arguments are legitimate because they are
authorized by legal sources that are ultimately social and fact-based. A good example of
this is Justice Scalia’s constant reference to Articles I and III of the Constitution to justify
his view of separation of powers and the correct interpretive methodology, both questions
that seem to involve normative issues and analyses.
37. See, e.g., Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV.
1175 (1989); SCALIA, A MATTER OF INTERPRETATION, supra note 4.
38. Id. at 1185 (1989); Cass Sunstein, Justice Scalia’s Democratic Formalism, 107
YALE L.J. 529, 539 (1997); William N. Eskridge, The New Textualism, 37 UCLA L. REV.
621, 649 (1990).
39. Antonin Scalia, The Rule of Law as a Law of Rules, supra note 37, at 1185.
40. See, e.g., William N. Eskridge, Textualism, the Unknown Ideal?, 96 MICH. L. REV.
Spring 2015] POLITICS OF STATUTORY INTERPRETATION 535
another way. Referring to Justice Scalia’s practice of grounding his
interpretive theory within the Constitution itself, Professor Tribe
points out that this necessarily raises the specter of infinite regress:
Prominent . . . is the simple but ultimately deep
problem of self-referential regress whenever one seeks
to validate, from within any text’s four corners, a
particular method of giving that text meaning. Even if
one sought to “prove” a proposition as seemingly
straightforward as that the marks on the pages of a
given text should be understood as written in English
rather than in some other tongue, one could not do so
by quoting from the page itself . . . although I
nonetheless share with Justice Scalia the belief that the
Constitution’s written text has primacy and must be
deemed the ultimate point of departure . . . [t]here is
certainly nothing in the text itself that proclaims the
Constitution’s text to be the sole or ultimate point of
reference—and, even if there were, such a selfreferential
proclamation would raise the problem of
infinite regress and would, in addition, leave
unanswered the very question with which we began:
how is the text’s meaning to be ascertained?41
Or, in other words, we cannot refer to the constitutional text to
understand how to interpret that text. This, then, brings us to what I
believe is the legitimate philosophical defense that Justice Scalia
offers: A theory of interpretation that is grounded in a particular
vision of the rule of law.
2. Justification II: Rule of Law
In his extra-judicial writings, Justice Scalia states that his primary
concern is ensuring the maintenance of a “government of laws, not
men.”42 In other words, he places great value upon the rule of law in
its most formal and basic sense. In other words, he insists that, for
there to be a genuine government of laws, the laws themselves should
fulfill certain criteria of prospectivity, generality, clarity, and so on,
with minimal individual discretion in understanding and applying
41. Laurence Tribe, Comment, in SCALIA, A MATTER OF INTERPRETATION, supra
note 4, at 78.
42. SCALIA & GARNER, READING LAW, supra note 1, at 375.
536 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 42:3
them.43 We shall consider later the specific normative values that
underlie this vision—in particular, predictability and formal equality.
For now, we may notice that this is one way of explaining Justice
Scalia’s preference of semantic over pragmatic meaning, and his
consequent rejection of the faithful agent theory. The pragmatics of a
situation are not only often not known to a significant portion of the
audience (this would be especially true in cases of law, addressed to
citizens at large), but—arguably—are more subject to manipulation
and the play of individual discretion than simple sentence meaning.
Thus, the reason why Justice Scalia has settled upon semantic—as
opposed to pragmatic—meaning is driven by what he sees to be the
basic normative purpose of the legal enterprise: maintaining and
upholding the rule of law, and the values that are served thereby.
Professor Eskridge agrees, placing a number of the Scalian
interpretive canons within the rubric of the rule of law:
Scalia and Garner’s particular list of canons is
dominated by a nonconstitutional value, that of
continuity . . . Continuity is a rule of law value:
Americans rely on longstanding legal rules, plan their
lives around them, and assume that most of the really
important rules will continue to be in place. Similarly,
the rule of law abhors uncertainty and fluctuating rules.
These values of continuity undergird what Scalia and
Garner call the “stabilizing canons,” namely the
presumption against change in common law . . . the
canon of imputed common-law meaning, the priorconstruction
canon, the presumption against implied
repeals, and a few technical canons. Continuity values
are also an important justification for the authors’
supremacy-of-text principle, fixed-meaning canon,
presumption of consistent usage, presumption against
federal preemption, and presumption against implied
rights of action. And of course the best example of a
continuity-preserving canon is the stare decisis rule,
which Scalia and Garner do not discuss but do endorse
as an exception to textualism in many cases.44
43. For a conception of the thin rule of law, see LON FULLER, THE MORALITY OF
44. Eskridge, The New Textualism and Normative Canons, supra note 3, at 556
Spring 2015] POLITICS OF STATUTORY INTERPRETATION 537
The focus on continuity as a means of ensuring stability provides
a justification for Justice Scalia’s deference to tradition. Scholars
have pointed out that such deference appears to sit uneasily with
Justice Scalia’s rejection of precedent as having value in and of itself.45
What principle justifies according value to certain aspects of the past
but not to others? The answer is that traditions deeply rooted in the
nation’s history self-explanatorily serve the precise value of stability
and continuity that Professor Eskridge highlights as part of the
Scalian vision of the rule of law—while precedents, by themselves, do
not.46 This is also consistent with Justice Scalia’s seemingly selective
deference to precedent. His touchstone is the point at which
precedents become established to a degree that people—as with
traditions—begin to organize their lives around the assumption that
the law established by the precedent will remain firm and
undisturbed47 (the basic idea of legitimate expectation and estoppel,
in contract law). Naturally, this line is blurry, but it still helps us to
understand the principle that underlies what might, at first blush,
appear to be cherry-picking among precedents.
I will now attempt to demonstrate how this idea comports well
with various other aspects of Justice Scalia’s jurisprudence.
II. Legislative History
A linguistic approach founded on sentence meaning, undergirded
by a formal understanding of the rule of law logically leads Justice
Scalia to one of the most well-known aspects of his interpretive
theory: his rejection of legislative history. As we have seen above,
reference to legislative history is an exemplar of pragmatic linguistic
reasoning; it derives linguistic meaning by reference to non-linguistic
contexts. The best statement of this idea can be found in the Court’s
opinion in Watt v. Alaska:
48 “[t]he circumstances of the enactment of
particular legislation may persuade a court that Congress did not
45. See, e.g., Robert A. Burt, Precedent and Authority in Antonin Scalia’s
Jurisprudence, 12 CARDOZO L. REV. 1685 (1990).
46. I argue later that deference to tradition also forms part of Justice Scalia’s
substantive view on liberty.
47. See, e.g., Pennsylvania v. Union Gas Co., 491 U.S. 1, 34–35 (1989) (Scalia, J.,
concurring in part and dissenting in part) (“the mere venerability of an answer consistently
adhered to for almost a century, and the difficulty of changing, or even clearly identifying,
the intervening law that has been based on that answer, strongly argue against a change”).
Justice Scalia goes on to elaborate how forty-nine states have legislated following the rule
in Hans v. Louisiana (the impugned case at issue).
48. Watt v. Alaska, 451 U.S. 259 (1981).
538 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 42:3
intend words of common meaning to have their literal effect.”49
are now in a position to understand this more clearly; “circumstances
of enactment” refers to non-linguistic facts—the factual background of
the petrol-pump question, which is set up in opposition to “literal
effect,” which refers to sentence/semantic meaning. As Professor
Eskridge argues, the aim is to figure out the “assumptions, goals, and
limitations of the enacting Congress”50—all non-linguistic concerns.
Thus, by endorsing a semantic theory of meaning, Justice
Scalia—perfectly and consistently—refuses to invoke legislative
history in determining meaning. This, indeed, becomes clear in cases
like Babbitt v. Sweet Home Chapter of Communities. for a Great
51 where Justice Scalia, writing in dissent, specifically deploys
the rule of lenity—which he treats as providing linguistic
context/background—against the majority’s use of legislative (nonlinguistic)
history.52 The division in that case between Justice Scalia
and Justice Stevens is—inter alia—along the lines of using the rule of
lenity versus legislative history to clarify ambiguities which, in turn,
tracks the contestation between semantic and pragmatic meanings.
But what justifications does Justice Scalia himself provide for
rejecting legislative history? Again, there are two.
A. Justification I: Separation of Powers
Separation of powers is the first justification. Justice Scalia
argues that by entering into the thicket of legislative history, the
Court is essentially going into legislative intent.53 He argues that the
task of the legislature is to frame laws, not to have intentions.54 For
him, therefore, investigating legislative history is tantamount to the
Court stepping into the legislative domain and doing its task for it.55
For the precise reason noted above, this will not do; the Constitution,
in its allocation of powers, does not impose any particular interpretive
theory upon judges. Justice Scalia would argue that what the
49. Id. at 266.
50. Eskridge, The New Textualism, supra note 38, at 630.
51. Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687 (1995).
52. Id. at 721 (Scalia, J., dissenting); Eskridge, The New Textualism and Normative
Canons, supra note 3, at 545.
53. Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia J., concurring).
54. Id. See also, for instance, his opinions in Shady Grove Orthopedic Associates,
P.A. v. Allstate Insurance Co., 130 S. Ct. 1431 (2010) and INS v. Cardoza-Fonseca, 408
U.S. 480 (1987).
55. An argument Professor Eskridge attributes to the Department of Justice 1989
Re-Evaluation Paper. Eskridge, The New Textualism, supra note 38, at 648; see id. at n.
Spring 2015] POLITICS OF STATUTORY INTERPRETATION 539
Constitution does mandate is that the legislators make law, and
judges interpret it. That leaves the question of what law is entirely
Justice Scalia’s other separation of powers-based argument—that
ultimately, because of the institutions of bicameralism and
presentment, law simply ought to be the text that all parties agree
upon, and that consulting legislative history would privilege Congress
over the other lawmaking branches56—also will not do because, as
Professor Eskridge points out:
Bicameralism and presentment requirements are only
formally applicable when “actions taken by either
House . . . ‘contain matter which is properly to be
regarded as legislative in its character and effect,’”
namely, to alter legal rights and duties. As a formal
matter, committee reports consulted to explain the
meaning of the statute do not themselves seek to alter
legal rights and duties. Consulting them does not
violate bicameralism or presentment any more than
would consulting a dictionary.57
Separation of powers, therefore, cannot justify the rejection of
B. Justification II: Minimalism
At various places, we note Justice Scalia’s other concern with the
use of legislative history: That it “becomes a smokescreen for
smuggling in the preferences of judges.”58 One of the dominant bases
of his theory of interpretation, then, is concerned with restricting the
scope of discretion accorded—as he understands it—to judges. This, if
we delve deeper into Justice Scalia’s writings, stems from a deeper
quest—that is, a quest for objectivity.
59 Justice Scalia believes that the
more discretion judges have (for instance, interpreting “cruel and
unusual” in light of the “evolving standards of decency”60), the less
56. Thompson v. Thompson, 484 U.S. 174, 191–92 (1988) (Scalia, J., concurring in the
57. Eskridge, The New Textualism, supra note 38, at 672.
58. SCALIA, A MATTER OF INTERPRETATION, supra note 4, at 18; see also Frank H.
Easterbrook, The Role of Original Intent in Statutory Construction, 11 HARV. J.L. & PUB.
POL’Y 59 (1988).
59. SCALIA & GARNER, READING LAW, supra note 1, at 89 (“Originalism is the only
objective standard of interpretation.”).
60. Trop v. Dulles, 356 U.S. 86 (1958).
540 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 42:3
bound they are by the four corners of the text. And this is
undesirable, because judges’ preferences are indeterminate (at least
to the people who are bound by their judgments), while the text—as
Justice Scalia argues—is tangible, objective,61 and determinate. But
this, we will notice, is simply the rule-of-law justification by another
name. Indeed, Justice Scalia explicitly makes the connection between
judicial minimalism and the rule of law in an essay, where he writes:
But when one does not have a solid textual anchor or
an established social norm from which to derive the
general rule, its pronouncement appears
uncomfortably like legislation. If I did not consider
my judgment governed by the original meaning of
constitutional text, or at least by current social practice
as reflected in extant legislation, I would feel relatively
comfortable deciding case-by-case whether, taking
into account all of the circumstances, the death
sentence for this particular individual was “cruel and
unusual”—but I would feel quite uncomfortable
announcing firm rules (legitimated by nothing but my
own sense of justice) regarding the relevance of such
matters as the age of the defendant, mental capacity,
intent to take a life, and so forth.62
The ideal of objectivity provides a second justification for Justice
Scalia’s deference to tradition. Indeed, he makes a categorical link
between the two. By holding that judges must defer to tradition at
the most specific level possible, he argues that judges will thus ensure
conformity with “principles adhered to, over time, by the American
people, rather than those favored by the personal . . . philosophical
dispositions of a majority of this Court.”63 This concern is perhaps
expressed most vividly in Michael H. v. Gerald D.,
64 where Justice
Scalia links tradition with the very idea of identifiable rules, and thus,
with his conception of law: “general traditions provide such imprecise
guidance [that] they permit judges to dictate rather than discern
61. See, e.g., SCALIA, A MATTER OF INTERPRETATION, supra note 4, at 21 (“When
the objective import of the statute is clear enough”).
62. Scalia, The Rule of Law as a Law of Rules, supra note 37, at 1185 (emphasis
63. Rutan v. Republican Party of Ill., 497 U.S. 62, 96 (1990) (Scalia, J., dissenting).
64. Michael H. v. Gerald D., 491 U.S. 110 (1989).
Spring 2015] POLITICS OF STATUTORY INTERPRETATION 541
society’s views . . . a rule of law that binds neither by text nor by any
particular, identifiable tradition, is no rule of law at all.”65
III. Original Public Meaning
So far, we have traced the links between textualism, the rejection
of legislative history, deference to tradition, and semantic meaning
within an overall normative framework that places primary value
upon the rule of law. Let us now consider the second great pillar of
Justice Scalia’s interpretive theory: original public meaning—that is,
the public meaning of the words used in a text at the time that it was
We can fit public meaning into Justice Scalia’s theory easily
enough; values of clarity and fair warning, that form the basis of the
rule of law, are served best when words are given the meaning that
the general public would most readily associate with them. But why
must we refer to the original public meaning? Wouldn’t those same
values of the rule of law be served better by adopting the current
public meaning—the one that the people now (that is, the intended
audience of the legislative communicative act, at any given point)—
would most readily associate with the statutory text? While there
does seem to be a conflict here, Justice Scalia resolves it internally, by
viewing it as a clash between two rule of law values, and giving more
weight to the ideal of objectivity. Objectivity—achieved through
minimalism—is revealed in his rejection of living constitutionalism,
where he argues that that particular theory fails because there is “no
agreement, and no chance of agreement, upon what is to be the
guiding principle of the evolution.”67
The concern with agreement is
the same as the concern with objectivity: Elsewhere, Justice Scalia
treats as conclusive the argument that “originalism is the only
objective standard of interpretation even competing for acceptance.”68
Thus, what worries Justice Scalia is the unpredictability that
accompanies a failure of agreement or excessive subjectivity in
determining how laws are to be understood, which he considers to be
necessary fallout of an evolving interpretation.
65. Id. at 128 (Scalia J.); see also Burnham v. Super. Ct. of Cal., Cnty. of Marin, 495
U.S. 604 (1990); Thompson v. Oklahoma, 487 U.S. 815 (1988).
66. SCALIA, A MATTER OF INTERPRETATION, supra note 4, at 38 (emphasis added).
67. Id. at 46.
68. SCALIA & GARNER, READING LAW, supra note 1, at 89.
542 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 42:3
A. Corollary: Clarifying the Use of Dictionaries
It is in this context that we now examine Justice Scalia’s
approach to dictionaries. It is well-documented that Justice Scalia is a
frequent user of dictionaries, and indeed, the use of dictionaries by
the Court during his tenure has been pervasive.69 There are, however,
two distinct ways in which dictionaries might be used in legal analysis:
as authoritative sources of meaning or as reliable guides to meaning.
The former treats dictionaries as playing the pivotal role in what is
essentially a form of a coordination convention.70 To serve the goals
of efficient communication, every system of language needs certain
linguistic authorities (much like science needs scientific authorities).
Dictionaries serve this role because we all treat them as the generators
of correct meaning—that is, a word means what it means by virtue of
the fact the a dictionary says so.
The latter idea, however, does not focus on correct meaning, but
rather on the publicly accepted meaning. According to this theory,
dictionaries are not markers of truth, but simply utilitarian tools that
work because we all—as a matter of contingent fact—defer to the
meanings that they list. We refer to a dictionary, therefore, simply to
know how a community of linguistic users is most likely to use a word.
Justice Scalia purports to subscribe to the second of these
accounts, which is entirely consistent with his theory of statutory
interpretation. So, for instance, in Liteky v. United States,
analyzes the meaning of the words “prejudice” and “bias” in the
following way: “As generally used, these are pejorative terms,
describing dispositions that are never appropriate. It is common to
speak of ‘personal bias’ or ‘personal prejudice’ without meaning the
adjective to do anything except emphasize the idiosyncratic nature of
bias and prejudice.”73 Similarly, in Chisom v. Roemer,
74 writing in
dissent, Justice Scalia emphasized the need for ordinary terms used in
their ordinary context to be given a “predictable meaning”75—which,
in dictionary terms, would translate to picking the meaning commonly
69. James J. Brudney & Cory Ditslear, Canons of Construction and the Elusive Quest
for Neutral Reasoning, 58 VAND. L. REV. 1 (2005).
70. DAVID LEWIS, CONVENTION: A PHILOSOPHICAL STUDY (2002).
71. See, e.g., HILARY PUTNAM, The Meaning of Meaning, in MIND, LANGUAGE AND
REALITY, VOL. 2: PHILOSOPHICAL PAPERS 275 (1975) (calling this the “linguistic division
72. Liteky v. United States, 510 U.S. 540 (1994).
73. Id. at 550–51 (emphasis added).
74. Chisom v. Roemer, 501 U.S. 380 (1991).
75. Id. at 417 (Scalia J., dissenting).
Spring 2015] POLITICS OF STATUTORY INTERPRETATION 543
followed by the lay reader. In that case, indeed, he settled upon what
he considered to be the ordinary (as opposed to correct) meaning of
the word “representative” from Webster’s Second.
76 And in Wisconsin
Department of Revenue v. William Wrigley Jr., he cited Black’s Law
Dictionary and Webster’s Third to hold that “‘solicitation,’ commonly
understood, [as opposed to ‘correctly understood’] means ‘[a]sking’
for, or ‘enticing’ to, something . . .”77
Furthermore, in a parallel—yet closely related—context, when
explaining why he would examine the framing debates, he says:
I will consult the writings of some men who happened
to be delegates to the constitutional convention—
Hamilton’s and Madison’s writings in The Federalist,
for example. I do so, however, not because they were
Framers and therefore their intent is authoritative and
must be the law; but rather because their writings, like
those of other intelligent and informed people of the
time, display how the text of the Constitution was
originally understood. Thus I give equal weight to
Jay’s pieces in The Federalist, and to Jefferson’s
writings, even though neither of them was a Framer.78
The Framers’ writings—exactly like dictionaries—are thus guides
to public usage, and not determinants of correct usage.
79 This fits
76. Id. at 410 (Scalia J., dissenting). See also Note, Looking it Up: Dictionaries and
Statutory Interpretation, 107 HARV. L. REV. 1437, 1442 (1994). For the purpose of this
argument, I wish to bracket the legitimate critique that dictionaries are not, actually
repositories of ordinary meaning, and examine Justice Scalia’s arguments on its own
terms. See, e.g., id. at 1445; Cass Sunstein, Interpreting Statutes in the Regulatory State, 103
HARV. L. REV. 405 (1989).
77. Wis. Dep’t of Revenue v. William Wrigley, Jr., 505 U.S. 214, 223 (1992)
78. SCALIA, A MATTER OF INTERPRETATION, supra note 4, at 38 (emphasis added).
79. But see MCI v. AT&T, 512 U.S. 218 (1994), which turned upon the meaning of
the word “modify.” Professor Eskridge argues that in that case, Justice Scalia rejected the
use of Webster’s Third because it was merely “colloquial.” Eskridge, Textualism, the
Unknown Ideal?, supra note 40, at 1546. If true, this is certainly an inconsistency in Justice
Scalia’s jurisprudence, and must be acknowledged as such. I am not sure, however, if
colloquialism was the ground for rejecting Webster’s Third. Justice Scalia does not
mention colloquialism in his judgment, and his opinion is focused more on how the
definition in Webster’s Third is a lone voice in the wilderness, against an array of
dictionaries on the other side. Consider: “a meaning set forth in a single dictionary (and,
as we say, its progeny) which not only supplements the meaning contained in all other
dictionaries, but contradicts one of the meanings contained in virtually all other
dictionaries.” MCI, 512 U.S. at 227 (emphasis added). Now, it is true, as Justice Stevens’s
dissent pointed out, and as Professor Eskridge points out, there were actually a number of
544 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 42:3
neatly with the overall normative vision of the rule of law as guiding
action and creating predictability because if dictionaries do serve this
role, then adhering to the meaning provided therein is the best way of
adhering to law’s role of putting citizens on advance notice about
what actions are prohibited and what are permitted. Thus, the
Framers’ writings serve both of Justice Scalia’s goals of formal
equality (impartiality) through prospectivity and predictability
through public knowledge.
IV. Overall Justification I: Popular Sovereignty and Democracy
We have now examined Justice Scalia’s interpretive approach in
detail. Does he provide an overall justification for it? At the very
beginning of A Matter of Interpretation, he argues that it is:
incompatible with democratic government to have the
meaning of law determined by what the lawgiver
meant rather than what the lawgiver promulgated . . .
[A] government of laws means that it is law that will
govern . . . [M]en may intend what they will, but it is
only the laws that they enact which bind us.80
At another place, he argues: “Originalism is the only approach to
text that is compatible with democracy. When government-adopted
texts are given a new meaning, the law is changed; and changing
written law, like adopting written law in the first place, is the function
of the first two branches of government.”81 We have argued above
that these statements are not as self-evidently true as it seems at first
glance, because they do not begin to answer the question: What
techniques must we apply to know what it is that the lawgiver
promulgated, or what the law means? Once again, circularity is
evident, especially in the second statement. Originalism is the only
philosophy that interprets the law as it is and does not change it—but
what the law is, is to be determined by applying the techniques of
It is similarly question-begging to argue—as some scholars do—
that Justice Scalia’s emphasis on judicial minimalism is undergirded
by democratic concerns, because it seeks to curtail judicial discretion
other dictionaries that adhered to the contrary meaning of “modify.” That would imply,
however, that Justice Scalia misapplied his own test on facts, not that he supported a
80. SCALIA, A MATTER OF INTERPRETATION, supra note 4, at 17 (emphasis added).
81. SCALIA & GARNER, READING LAW, supra note 1, at 82 (emphasis added).
Spring 2015] POLITICS OF STATUTORY INTERPRETATION 545
to provide greater scope for action to the more democratically
responsive branch, the legislature.82 This is because judicial
minimalism must depend upon a theory of interpretation, rather than
giving rise to one. We cannot know whether, by being minimalists,
judges are carrying out their duty to interpret laws, unless we first
know what those laws say. Without that knowledge, there is no way of
telling whether judicial minimalism is not simply a judicial abdication
of duty.83 Professor Sunstein points out a further—and related—
problem when he argues that Justice Scalia’s minimalism essentially
involves a near-complete deference to unchecked majoritarian
processes.84 Now it could well be that Justice Scalia believes in a
version of democracy that is almost entirely majoritarian in nature.
But if so, that is a contested idea at best, and he has not mounted a
defense to it.
What all this emphasizes, however, is that Justice Scalia’s
underlying theory of democracy does little independent work in his
theory of interpretation. Indeed, his conception of democracy is
reducible—at least as he states it—to his conception of the rule of
law. This is evident from the argument he provides that does seek to
locate the substance of democracy as grounded in something beyond
simply judges-sticking-to-the-meaning-of-laws (without providing an
account of how that meaning is to be determined). Justice Scalia
In a democratic system, of course, the general rule of
law has special claim to preference, since it is the
82. Tom Levinson, Confrontation, Fidelity, Transformation: The Fundamentalist
Judicial Persona of Justice Antonin Scalia, 26 PACE L. REV. 445, 471 (2006); Sunstein,
Justice Scalia’s Democratic Formalism, supra note 38, at 529.
83. A point made by David Strauss in a slightly different context: “[the originalist]
argument does not identify the theoretically correct way to interpret the Constitution.
Justice Scalia’s defense of traditionalism (and originalism—the same points apply) is that
the principal alternative way of interpreting the Constitution is too dangerous because it
allows judges to act on the basis of their predilections. He does not contend that the
traditionalist answer is what the Constitution actually prescribes. It is just that, according
to him, judges will come closer to what the Constitution prescribes if they try to be
traditionalists. In order to evaluate that claim, one must have an account of what the
Constitution does prescribe. Without such an account, one cannot determine whether
traditionalism or some other approach comes closer. That is, if there were no bounded
rationality problem if a judge had the capacity to do exactly what Justice Scalia wants her
to do—what would Justice Scalia tell her?” David Strauss, Tradition, Precedent and
Justice Scalia, 12 CARDOZO L. REV. 1699, 1711 (1991).
84. Cass Sunstein, Justice Scalia’s Democratic Formalism, supra note 38, at 562; see
generally Robert Post & Reva Siegel, Originalism as Political Practice: The Right’s Living
Constitution, 75 FORDHAM L. REV. 545 (2007).
546 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 42:3
normal product of that branch of government most
responsive to the people. Executives and judges
handle individual cases; the legislature generalizes.
Statutes that are seen as establishing rules of
inadequate clarity or precision are criticized, on that
account, as undemocratic—and, in the extreme,
unconstitutional—because they leave too much to be
decided by persons other than the people’s
Here, judicial minimalism is grounded in ideas of popular
sovereignty, because the more discretion is vested with judges, the
less decision-making is done by the most representative branch. But
that is at best a partial justification, since once again the focus is on
generality (being the “normal product” of legislative action) and
clarity and precision arise out of that generality.86
V. Overall Justification II: Rule of Law—Meaning and Values
We come at last to the real philosophical justification underlying
Justice Scalia’s approach to statutory interpretation—the rule of law.
We have referred, peripherally, to the values underlying the formal
rule of law. Let us now examine them in greater detail. For Justice
Scalia, there are two distinct values at stake.
A. Predictability and Stability
The formal rule of law is designed, by creating predictability and
stability, to allow people to plan their affairs with a degree of
certainty. This idea goes back to Lon Fuller’s inner morality of law,
where he locates the fundamental purpose of any legal system as
providing people basic security to make at least medium-term plans
without constant threat of disruption.87 Justice Scalia agrees and
observes: “[U]ncertainty has been regarded as incompatible with the
Rule of Law. Rudimentary justice requires that those subject to the
law must have the means of knowing what it prescribes . . .”88
Predictability is at the top of his mind, as well, when he declines to
85. Scalia, The Rule of Law as a Law of Rules, supra note 37, at 1176 (emphasis
86. Indeed, Sunstein himself comes to the conclusion that predictability is the most
important value that emerges out of this “democratic formalism.” Cass Sunstein, Justice
Scalia’s Democratic Formalism, supra note 38, at 532.
87. See FULLER, THE MORALITY OF LAW, supra note 43.
88. Scalia, The Rule of Law as a Law of Rules, supra note 37, at 1179.
Spring 2015] POLITICS OF STATUTORY INTERPRETATION 547
invoke the “spirit” of statutes, on the ground that “plain words must
evoke predictable meanings.”89
This rule of law value justifies—or at least, purports to justify—
Justice Scalia’s use of certain interpretive canons. Recall that, for
Justice Scalia, while certain linguistic canons are no more than
“presumptions about what an intelligently produced text conveys,”90
certain canons also have a “directive” purpose—that is, to “promote
clearer drafting.”91 Notice, specifically, the aspect of drafting that
Justice Scalia seeks to promote—and also, consequently, believes in
keeping with the judicial role and with the separation of powers—is
that of clarity, which is directly linked to the predictive and certaintycreating
functions of the rule of law. This is found, as well, in his
adoption of several of the linguistic canons, especially the
presumption of consistent usage. There, Justice Scalia admits that the
legislature does not actually function in that way (what about
concerns of democracy there?), but the presumption of consistent
usage—which, essentially, seeks to apply uniformity and
predictability of meaning within the same legislative instrument—is
nonetheless to be invoked by courts, either to impose coherence
where there was none, because the value of coherence (and
predictability) outweighs the value of accurate interpretation—or/and
to persuade legislatures to draft more clearly in the future.92
B. Formal Equality
The other basic value Justice Scalia finds attractive is that of
formal equality, which means treating like cases alike.93
“Impartiality” and “consistency” are two other terms that might be
used to characterize this value. So, he observes:
when a case is accorded a different disposition from an
earlier one, it is important, if the system of justice is to
be respected, not only that the later case be different,
but that it be seen to be so . . . [M]uch better, even at
the expense of the mild substantive distortion that any
89. SCALIA & GARNER, READING LAW, supra note 1, at 345. For an analysis, see
George Kannar, The Constitutional Catechism of Antonin Scalia, 99 YALE L.J. 1297, 1307
90. SCALIA & GARNER, READING LAW, supra note 1, at 82.
91. Id. (emphasis added).
92. Id. at 170.
93. The formulation is Aristotle’s, to whom Justice Scalia refers to approvingly. See
Scalia, The Rule of Law as a Law of Rules, supra note 37, at 1182.
548 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 42:3
generalization introduces, to have a clear, previously
enunciated rule that one can point to in explanation of
This explains, in fact, another interpretive technique that Justice
Scalia brings to statutory construction, one that is, as it turns out,
inconsistent with actual legislative practice. In Green v. Bock
Laundry Match Co.,
95 he holds that an interpretation must be “most
compatible with the surrounding body of law into which the provision
must be integrated—a compatibility which, by a benign fiction, we
assume Congress always has in mind.”96
Given that Justice Scalia
himself admits that this is a fiction, the logical question is—why this
fiction?97 And that is because coherence and consistency are
implicitly linked with formal equality, or equal treatment.
Furthermore, this also helps us to understand yet another of
Justice Scalia’s assumptions that is largely untethered from
democratic realities—that is, the assumption that legislators do
actually follow the canons of drafting that Justice Scalia brings to bear
on the interpretive process (and that they can be made to do so by
judicial practice aimed at bringing them in line). This is untethered
from reality because, as Eric Lane points out, “bill drafters are
generally not aware of the canons of construction or other guidelines
for interpretation. More importantly, even if they were, it would
make no difference, since the logic of the canons is not applicable to
the process from which legislation emerges and could not be
applied.”98 Justice Scalia’s ignoring actual legislative process makes
sense, however, if we understand that the rule of law values he
ascribes to the legal enterprise require him to make precisely those
assumptions. Much like the “benign fiction” he proposed in Green,
the following of the interpretive canons is simply another benign
fiction designed to bring practice in line with the normative value of
the rule of law. Nor is this untoward; once we understand that
interpretive theories—including Justice Scalia’s—are relentlessly
norm-and-purpose driven, the disconnect between his interpretive
94. Scalia, The Rule of Law as a Law of Rules, supra note 37, at 1178.
95. Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989).
96. Id. at 528.
97. John Manning, for instance, argues that this fiction is positively harmful, as it
goes against the interest-group bargaining and compromises that are an essential part of
legislation. John Manning, Textualism and the Equity of the Statute, supra note 27, at 70.
98. Eric Lane, Legislative Process and Its Judicial Renderings: A Study in Contrast, 48
U. PITT. L. REV. 639, 651 (1987); c.f. Eskridge, The New Textualism, supra note 38, at 679.
Spring 2015] POLITICS OF STATUTORY INTERPRETATION 549
assumptions and the actual legislative process should no longer be
This understanding also helps to assess criticisms. Professor
There is a democracy problem with a canons-based
textualism. If the canons overwhelmingly reflect
judicial values and not legislative ones, they can be
expected to operate in antidemocratic ways . . . the
democracy problem is exacerbated if canons-toting
judges overturn agency interpretations that are
consistent with Congress’s expectations, which is what
Justice Scalia was trying to do in Sweet Home. And
the democracy problem becomes a serious indictment
if judges are imposing canons-based meanings onto
statutes under circumstances where Congress is not
aware of the canons judges are using or is unable to
incorporate canonical rules into statutory drafting,
given the conditions of the legislative process.100
We can now understand the response that Justice Scalia would
give—or at least, the response he ought to give: Democratic
government involves a number of values, the most important of which
is ensuring stability and equal treatment by adhering to the rule of
law. Therefore, while there might arguably be a democratic loss in
ignoring the way the peoples’ representatives actually function, there
is a democratic gain in the values that are thereby preserved. Of
course, it then becomes important for Justice Scalia to demonstrate
how this is so, and for that he needs a detailed theory of democracy,
one that he has yet to provide.
VI. Rule of Law, Democracy and Freedom: A Hayekian
We might, however, be permitted a little extrapolation on Justice
Scalia’s behalf. At the heart of this formalistic vision of law lies a
further normative vision about the true meaning of liberty, one that is
developed by Friedrich Hayek. Hayek defines freedom as the
absence of coercion, and coercion as the imposition of someone else’s
99. Of course, it counts against a theory that departs radically and consistently from
actuality. See Paul Thagard, The Best Explanation: Criteria for Theory Choice, 75 J. PHIL.
100. Eskridge, The New Textualism and Normative Canons, supra note 3, at 538.
550 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 42:3
arbitrary will upon you.101 For Hayek, the formal rule of law is a
guarantor of freedom precisely because it prevents—to the greatest
extent possible—the imposition of such arbitrary will. So, Hayek
argues, “what distinguishes a free from an unfree society is that in the
former each individual has a recognized private sphere clearly distinct
from the public sphere, and the private individual cannot be ordered
about but is expected to obey only the rule which are equally
applicable to all.”102 In other words, “so long as kept within the
bounds of the law, there [is] no need to ask anybody’s permission or
to obey anybody’s orders.”103
This, in turn, can happen only if laws are known and certain, and
thus the decisions of the Courts can be predicted, because they lead
to consistent and foreseeable results. Thus we notice how—just like
for Justice Scalia—equality, predictability, promulgation, consistency
and certainty are all values that come together to form a framework
within which the individual is maximally free to plan his affairs
without interference by the arbitrary will of another.
Early on in The Constitution of Liberty, Hayek provides us with
the clearest statement of this principle:
The coercion which a government must . . . use . . . is
reduced to a minimum and made as innocuous as
possible by restraining it through known general rules,
so that in most instances an individual need never be
coerced unless he has placed himself in a position
where he knows he will be coerced . . . in this way . . .
being made impersonal and dependent upon general,
abstract rules, whose effects on particular individuals
cannot be foreseen at the time they are laid down,
even the coercive acts of government become data on
which the individual can base his own plans.104
Thus, the supreme advantage of abstract rules—and this meshes
with Justice Scalia’s determination towards judicial minimalism—is
that “the source of the decision on what particular action is to be
101. FRIEDRICH HAYEK, THE CONSTITUTION OF LIBERTY 11 (1960).
102. Id. at 207–08 (emphasis added). Notice the language of equality, found in Justice
Scalia’s writings in almost the same terms. The stress on formal equality is emphasized by
Westmoreland. Robert Westmoreland, Hayek: The Rule of Law or the Law of Rules?, 17
LAW & PHIL. 77, 95 (1998).
103. HAYEK, THE CONSTITUTION OF LIBERTY, supra note 101, at 208.
104. Id. at 21.
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taken shifts from the issuer to the actor . . . the ideal type of law . . .
provides merely additional information to be taken into
account . . .”105 This explains the Scalian passion for objectivity and
cabining discretion. Justice Scalia, following Hayek, sees a direct
connection between taking discretionary decision-making ability out
of the hands of the law’s creators and interpreters, and putting them
into the hands of the people to maximize freedom.
What is equally interesting is how, for Hayek, freedom and the
rule of law are implicitly bound up with traditions. Central to
Hayek’s philosophy is an analytical distinction between two kinds of
order: organizational and spontaneous.
106 A free society is precisely a
spontaneous ordering of individual actions and such a society can be
made possible—i.e., spontaneity is possible—only under a regime of
generally framed rules applicable to all.107 This is opposed to a regime
of specific commands, which characterize planned/organized
societies.108 Commands are geared towards achieving specific, defined
ends and constrain individual action in service of those ends.109 This is
the very definition of coercion.110 Thus, for Hayek, true freedom is
possible only through spontaneous ordering.111
But Hayek then further argues, “[O]nly against a settled
background of principle can a society of free and spontaneous agents
function at all.”112
This is the backbone of his justification of
traditions as integral to freedom. In his words:
The value of freedom consists mainly in the
opportunity it provides for the growth of the
undesigned, and the beneficial functioning of a free
society rests largely on the existence of such freely
grown institutions. There probably never has existed a
genuine belief in freedom, and there has certainly
been no successful attempt to operate a free society,
without a genuine reverence for grown institutions, for
105. Id. at 150 (emphasis added).
106. Struan Jacobs, Spontaneous Order: Michael Polanyi and Friedrich Hayek, 3
CRITICAL REV. INT’L SOC. & POL. PHIL. 49 (2000).
107. Id. at 55.
108. Id. at 56.
112. Anthony O’Hear, Criticism and Tradition in Popper, Oakeshott and Hayek, 9 J.
APPLIED PHIL. 65, 72 (1992) (emphasis added).
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customs and habits and “all those securities of liberty
which arise from regulation of long prescription and
ancient ways.” Paradoxical as it may appear, it is
probably true that a successful free society will always
in a large measure be a tradition-bound society.
In other words, the thin rule of law, with its formal equality of
treatment, permits114 individuals to generate a spontaneous order in
which various practices are tried and tested, and compete with each
other;115 traditions refer to those gradually evolving bodies of
practice116 that have withstood the test of time, and provide the
framework for further action.117 This, for Hayek, is the paradigm case
of a free society.118
In a previous section, I argued that reliance on tradition serves
functions of continuity and stability that Justice Scalia finds valuable
in the legal enterprise. We can now see, however, that the role of
tradition is deeper: in its interaction with the thin conception of the
rule of law,119 it is central to the Hayekian-Scalian vision of freedom,
democracy and the good society. While Justice Scalia’s reliance on
tradition has been noted by many as Burkean,120 in my opinion, it is
more than just Burkean. In how tradition meshes with formal
equality and the rule of law to form a complex, interlocking idea of
the free society, Justice Scalia’s jurisprudence is the concrete
exemplar of the social philosophy of Friedrich Hayek.
113. Friedrich Hayek, Freedom, Reason and Tradition, 68 ETHICS 229, 235 (1958)
114. Or, in Hayek’s words, “induces.” See Struan Jacobs, Spontaneous Order, supra
note 106, at 52.
115. FRIEDRICH HAYEK, THE FATAL CONCEIT: THE ERRORS OF SOCIALISM 19, 26
(1988). For a critique of the notion of competition, see Geoffrey M. Hodgson, Hayek’s
Theory of Cultural Evolution: An Evaluation in the Light of Vanberg’s Critique, 7 ECON. &
PHIL. 67 (1991).
116. Indeed, the “organic” nature of tradition has been stressed in the specific context
of Justice Scalia’s jurisprudence. See, e.g., J. Richard Broughton, The Jurisprudence of
Tradition, 103 W. VA. L. REV. 19, 21 (2001).
117. FRIEDRICH HAYEK, NEW STUDIES IN PHILOSOPHY, POLITICS, ECONOMICS AND
THE HISTORY OF IDEAS 10 (1978). For an exposition and critique of this important point,
see Martin de Vlieghere, A Reappraisal of Freidrich Hayek’s Cultural Evolutionism, 10
ECON. & PHIL. 285 (1994).
118. Westmoreland, supra note 102, at 77, 79.
119. We can also explain now something that scholars like Zeppos find particularly
troubling—the dissonance between Justice Scalia’s focus on textualism, and his deference
to traditions, which are emphatically non-textual. Nicholas S. Zeppos, Justice Scalia’s
Textualism: The “New” New Legal Process, 12 CARDOZO L. REV. 1597, 1630 (1991).
120. Strauss, supra note 83, at 1704.
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The last aspect of Hayek’s thought should not now be surprising.
His enthusiastic endorsement of spontaneous ordering—the role of
gradually accumulated traditions as the sum of a number of individual
practices interacting with each other in a social atmosphere akin to a
free market—is matched by his antipathy to a “planned society,”
where an individual or a group of individual attempt to deploy
“rational methods” in directing individual action towards a set of predetermined
goals and outcomes.121 Such a society functions through
commands, not rules, which are not only the embodiments of coercion
(since they do not allow the agent freedom of action), but also
prevent the “adaptive evolution” to circumstances that are so
important to a free and evolving society.122 In other words, subject to
the abstractly worded, general rules outlined above, individuals ought
to be left to their devices in an entirely unregulated economic and
social environment. True, in his judicial and extra-judicial writings,
Justice Scalia nowhere explicitly endorses this vision.123 But, surely, it
is no mere coincidence that completing the triumvirate of abstract
rules and deference to tradition (both of which Justice Scalia does
explicitly endorse) is a deeply conservative vision of a minimalist state
as the best guardian of individual freedom (which matches Justice
Scalia’s political views).
We can now conclude that at its deepest level, it is a Hayekian
social and political vision that generates a thin, formal conception of
the rule of law, focusing on generality, abstractness, predictability,
certainty, prospectivity, and other similar values, designed to provide
maximum scope for unconstrained individual action (or at least, that
is the claim). This thin conception of the rule of law then determines
Justice Scalia’s concrete approach to statutory interpretation: his
choice of semantic meaning over pragmatic meaning through his
embrace of textualism, his rejection of legislative history, his adoption
of original public meaning, his overriding concern with objectivity and
limiting judicial (and even legislative) discretion, his reliance upon
121. Celia L. Kerstenetzky, Hayek: The Evolutionary and the Evolutionist, 12
RATIONALITY & SOC’Y 163, 164 (2000).
122. FRIEDRICH HAYEK, LAW, LEGISLATION AND LIBERTY, VOL. II 128 (1982).
123. But see Eskridge, Nino’s Nightmare, supra note 35. Professor Eskridge argues
that this substantive vision is visible—at least implicitly—in Justice Scalia’s dissenting
opinion in Sweet Home v. Babbitt. He points to Justice Scalia’s invocation of “the small
farmer” having his land “conscripted for national zoological use” to highlight Justice
Scalia’s normative baseline—a Blackstonian conception of strong property protection and
a distrust of State intervention. Unsurprisingly, protection of property rights is a
centerpiece of Hayek’s rules structuring a good society as well. Eskridge, Nino’s
Nightmare, supra note 35, at 880.
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dictionaries, and his express rejection of the faithful agent theory. I
would submit that we can understand all these diverse—seemingly
random, even conflicting—aspects of Justice Scalia’s theory of
statutory interpretation only if we understand it in the context of his
deep normative vision about the rule of law and the nature of
freedom in a democratic society.
VII. Corollary: Theory of Precedent
Consistent, again, with the rest of his approach, Justice Scalia’s
theory of precedent is precisely that he has none. Precedent, for him,
has no independent gravitational force, that is, it has no binding—or
otherwise normative—significance simply by virtue of it having been
decided by a court. It does have force only insofar as it serves the
values contained in the rule of law—that is, again, as a matter of
contingent fact, people tend to order their affairs and plan their lives
in pursuance of court decisions declaring what the law is.124 It is in this
context that we ought to understand Scalia’s position that
“stare decisis is not part of [originalism]; it is a pragmatic exception to
it”125—with an appropriate modification. The pragmatism involved in
adhering to stare decisis is nonetheless in service of a principle, which
is adhering to the rule of law’s value of maintaining predictability.
This view itself is based on a notion of human society that disdains
external planning, and holds that an unregulated interaction of
independent human wills shall both preserve individual freedom, and
lead to the best results.
In this Article, I have sought to demonstrate that if we are to
make sense of Justice Scalia’s sprawling vision of statutory
interpretation, instantiated through a number of diverse interpretive
approaches, we can only do so by grounding it in a deeper,
inescapably normative and political vision of society.
between concrete interpretive techniques, as applied to specific cases,
such as the use (or disuse) of legislative history, the weight accorded
to precedent, the resort to dictionaries, and abstract political
philosophy has not been adequately explored in the literature on
statutory interpretation. What this Article shows is that
interpretation and interpretive canons are political. They are not
inherently part of the very concept of statutory interpretation, or
124. SCALIA & GARNER, READING LAW, supra note 1, at 414.
125. SCALIA, A MATTER OF INTERPRETATION, supra note 4, at 140.
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axiomatic components of what it means to “interpret.” Therefore,
the ultimate debate between rival interpretive philosophies must take
place—and be settled—at the level of political values.
What we also learn, then, is that “correct” or “incorrect” are
risky terms when it comes to labeling approaches to statutory
One might disagree with Hayek’s vision of the good
society and his stress on general rules and formal equality, and one
might propose an alternative vision of one’s own—but one cannot win
that particular argument by producing irrefutable evidence in support
of either side.
Consequently, a defense of Scalia would entail
explicating what it is about the Hayekian vision that we find so
convincing and persuasive; likewise, a critique of his statutory
interpretation would involve arguing why that same vision is
deficient, or lacking.
Moving the debate to that level would do
wonders for clarity and lucidity.
Ultimately, whether we like it or not,
we are all engaged in the politics of statutory interpretation.