The Incoherence and Bad Faith of Antonin Scalia’s Originalism — Updated

UPDATE: I just realized that yesterday I mistakenly published a rough draft of this post instead of the version that I had intended to publish. I apologize for that unforced error.

My previous post about judge-made law was inspired by a comment by Scott Sumner on the post before that about Judge Gorsuch. Well, another commenter, gofx, who commented on the post about judge-made law, has inspired this post. Let’s see how long we can keep this recursive equilibrium going. Here’s what gofx had to say:

David, I think your original post criticizing Gorsuch for a “monumental denial of reality” is confusing a normative statement and a positive statement. Textualists, like Scalia and others try to balance the effects common law, statutory, and executive (administrative) law. Yes, English common law is one of the bases of American law. But even the supreme court placed limits on federal judges creating common law with respect to certain areas of state law (Erie Railroad Co. v. Tompkins). So while common law remains important, judges are no longer the King’s agents attempting to standardize decisions and principles across the realm. Along came democracy, legislatures and executive-branch regulations. There is still plenty of scope for common law, but there is more and more “prescribed” laws and rules.

I agree that there is a problem here with confusing “normative” and “positive” statements about the law and the role of judges in making – or not making – law. But I don’t think that the confusion is mine. This is an important point, which will come up again below. But first, let me quote further from gofx’s comment:

Here is Scalia in “Common Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws:”

But though I have no quarrel with the common law and its process, I do question whether the attitude of the common-law judge – the mind-set that asks, “What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?”– is appropriate for most of the work that I do, and much of the work that state judges do. We live in an age of legislation, and most new law is statutory law. As one legal historian has put it, in modern times “the main business of government, and therefore of law, [is] legislative and executive …. Even private law, so-called, [has been] turning statutory. The lion’s share of the norms and rules that actually govern[} the country [come) out of Congress and the legislatures. . . . The rules of the countless administrative agencies [are] themselves an important, even crucial, source of law.” This is particularly true in the federal courts, where, with a qualification so small it does not bear• mentioning, there is no such thing as common law.”

I am grateful for the reference to this essay based on two lectures given by Scalia in 2010, which I have now read for the first time. The first thing to note about the lecture is that despite his disclaimer about having “no quarrel with the common law and its process,” Scalia adopts an almost uniformly derogatory and disdainful attitude toward the common law and especially toward common-law judges; the disdain, bordering on contempt, is palpable. Here are some examples aside from the one gofx kindly provided:

As I have described, this system of making law by judicial opinion, and making law by distinguishing earlier cases, is what every American law student, what every newborn American lawyer, first sees when he opens his eyes. And the impression remains with him for life. His image of the great judge — the Holmes, the Cardozo — is the man (or woman) who has the intelligence to know what is the best rule of law to govern the case at hand, and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule — distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches his goal: good law. That image of the great judge remains with the former law student when he himself becomes a judge, and thus the common-law tradition is passed on and on.

[T]he subject of statutory interpretation deserves study and attention in its own right, as the principal business of lawyers and judges. It will not do to treat the enterprise as simply an inconvenient modern add-on to the judges’ primary role of common-law lawmaking. Indeed, attacking the enterprise with the Mr. Fix-it mentality of the common-law judge is a sure recipe for incompetence and usurpation.

But the Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning; but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning. The ascendant school of constitutional interpretation affirms the existence of what is called the “living Constitution,” a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and “find” that changing law. Seems familiar, doesn’t it? Yes, it is the common law returned, but infinitely more powerful than what the old common law ever pretended to be, for now it trumps even the statutes of democratic legislatures.

If you go into a constitutional law class, or study a constitutional-law casebook, or read a brief filed in a constitutional-law case, you will rarely find the discussion addressed to the text of the constitutional provision that is at issue, or to the question of what was the originally understood or even the originally intended meaning of that text. Judges simply ask themselves (as a good common-law judge would) what ought the result to be, and then proceed to the task of distinguishing (or, if necessary, overruling) any prior Supreme Court cases that stand in the way. Should there be (to take one of the less controversial examples) a constitutional right to die? If so, there is. Should there be a constitutional right to reclaim a biological child put out for adoption by the other parent? Again, if so, there is. If it is good, it is so. Never mind the text that we are supposedly construing; we will smuggle these in, if all else fails, under the Due Process Clause (which, as I have described, is textually incapable of containing them). Moreover, what the Constitution meant yesterday it does not necessarily mean today. As our opinions say in the context of our Eighth Amendment jurisprudence (the Cruel and Unusual Punishments Clause), its meaning changes to reflect “the evolving standards of decency that mark the progress of a maturing society.”

This is preeminently a common-law way of making law, and not the way of construing a democratically adopted text. . . . The Constitution, however, even though a democratically adopted text, we formally treat like the common law. What, it is fair to ask, is our justification for doing so?

The apparent reason for Scalia’s disdain for common-law judging is basically that judges, rather than deferring to the popular will expressed through legislation, presume to think that they can somehow figure out what the right, or best, decision is rather than mechanically follow the text of a statute enacted by a democratic legislature. Scalia hates judges who think for themselves, because, by thinking for themselves, they betray an insufferable elitisim instead of dutifully deferring to democratically elected legislators through whom the popular will is faithfully expressed. For Scalia it is the only the popular will that matters, the rights and interests of the litigants appearing before the judge being of little consequence compared to upholding the statutory text, the authoritative articulation of the popular will. Moreover, even if the statutes don’t achieve the right result, the people can at least read the statutes and regulations and know what the law says and how it will be enforced. And how can the people ever know what those high and mighty judges will decide to do next? And we all know — do we not? — the countless hours of their spare time spent in libraries and on-line by the unwashed masses poring over the latest additions to US Code and the Federal Register. Just think how all those long hours devoted to reading the US Code and the Federal Register would be wasted if those arrogant judges could simply ignore the plain meaning of the statutes and regulations and were allowed to use their own judgment in deciding cases.

I will forego, at least for now, indulging my desire to comment on Scalia’s critique of common-law judging. I want to focus instead on the positive case that Scalia makes for his textualist theory of statutory interpretation. To do so, let me quote liberally from Richard Posner’s withering 2012 review of Scalia’s treatise (co-authored by Bryan Garner), Reading the Law: The Interpretation of Legal Texts, which exposes the both the incoherence and the bad faith of Scalia’s textualist arguments. The entire review is worthy of careful study, but I will pick out a few paragraphs that highlight Scalia’s tortured relationship with and attitude toward the common law.

Judges like to say that all they do when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them. They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.

The passive view of the judicial role is aggressively defended in a new book by Justice Antonin Scalia and the legal lexicographer Bryan Garner (Reading Law: The Interpretation of Legal Texts, 2012). They advocate what is best described as textual originalism, because they want judges to “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.” This austere interpretive method leads to a heavy emphasis on dictionary meanings, in disregard of a wise warning issued by Judge Frank Easterbrook, who though himself a self-declared textualist advises that “the choice among meanings [of words in statutes] must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.” Scalia and Garner reject (before they later accept) Easterbrook’s warning. Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book. . . .

Another interpretive principle that Scalia and Garner approve is the presumption against the implied repeal of state statutes by federal statutes. They base this “on an assumption of what Congress, in our federal system, would or should normally desire.” What Congress would desire? What Congress should desire? Is this textualism, too?

And remember the ambulance case? Having said that the conclusion that an ambulance was forbidden to enter the park even to save a person’s life was entailed by textual originalism and therefore correct, Scalia and Garner remark several hundred pages later that the entry of the ambulance is not prohibited after all, owing to the “common-law defense of necessity,” which they allow to override statutory text. Yet just four pages later they say that except in “select fields such as admiralty law, [federal courts] have no significant common-law powers.” And still elsewhere, tacking back again, they refer approvingly to an opinion by Justice Kennedy (Leegin Creative Leather Products, Inc. v. PSKS, Inc.), which states that “the Sherman Act’s use of ‘restraint of trade’ invokes the common law itself … not merely the static content that the common law had assigned to the term in 1890.” In other words, “restraint of trade” had a specific meaning (and it did: it meant “restraints on alienation”) in 1890 that judges are free to alter in conformity with modern economics—a form of “dynamic” interpretation that should be anathema to Scalia and Garner. A few pages later they say that “federal courts do not possess the lawmaking power of common-law courts,” ignoring not only the antitrust and ambulance cases but also the fact that most of the concepts deployed in federal criminal law—such as mens rea (intent), conspiracy, attempt, self-defense, and necessity—are common law concepts left undefined in criminal statutes.

Scalia and Garner indicate their agreement with a number of old cases that hold that an heir who murders his parents or others from whom he expects to inherit is not disqualified from inheriting despite the common law maxim that no person shall be permitted to profit from his wrongful act. (Notice how common law floats in and out of their analysis, unpredictably.) They say that these cases are “textually correct” though awful, and are happy to note that they have been overruled by statute. Yet just before registering their approval they had applauded the rule that allows the deadlines in statutes of limitations to be “tolled” (delayed) “because of unforeseen events that make compliance impossible.” The tolling rule is not statutory. It is a judicial graft on statutes that do not mention tolling. Scalia and Garner do not explain why that is permissible, but a judicial graft disqualifying a murdering heir is not.

Scalia and Garner defend the canon of construction that counsels judges to avoid interpreting a statute in a way that will render it unconstitutional, declaring that this canon is good “judicial policy.” Judicial policy is the antithesis of textual originalism. They note that “many established principles of interpretation are less plausibly based on a reasonable assessment of meaning than on grounds of policy adopted by the courts”—and they applaud those principles, too. They approve the principle that statutes dealing with the same subject should “if possible be interpreted harmoniously,” a principle they deem “based upon a realistic assessment of what the legislature ought to have meant,” which in turn derives from the “sound principles…that the body of the law should make sense, and…that it is the responsibility of the courts, within the permissible meanings of the text, to make it so” (emphasis added). In other words, judges should be realistic, should impose right reason on legislators, should in short clean up after the legislators.

I would just note in passing that Posner shows that the confusion between normative and positive which gofx in the comment above ascribed to me is obviously running rampant, if not amok, throughout Scalia’s treatise. But Posner’s evisceration of Scalia’s bad faith does not go far enough, because the bad faith extends beyond Scalia’s willingness to invoke (or smuggle in) common-law principles to cover up the gaps in his textualism. Scalia’s whole originalist doctrine that the text of the Constitution should be interpreted according to the original meaning of the text of the Constitution relies on the premise that the judicial interpretations of the Constitution had always been governed by the original meaning that had been universally attributed to the Constitutional text. It was only much later, say, in the middle of the twentieth century, on or about May 17, 1954, that the interpretation of the Constitution was perverted by the reprehensible judges and their academic handmaidens who invented the notion of a living constitution that adjusts to the “evolving standards of decency that mark the progress of a maturing society.” Let me quote once more from Posner’s review:

Scalia and Garner contend that textual originalism was the dominant American method of judicial interpretation until the middle of the twentieth century. The only evidence they provide, however, consists of quotations from judges and jurists, such as William Blackstone, John Marshall, and Oliver Wendell Holmes, who wrote before 1950. Yet none of those illuminati, while respectful of statutory and constitutional text, as any responsible lawyer would be, was a textual originalist. All were, famously, “loose constructionists.”

Scalia and Garner call Blackstone “a thoroughgoing originalist.” They say that “Blackstone made it very clear that original meaning governed.” Yet they quote in support the famous statement in his Commentaries on the Laws of England that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law” (emphasis mine, except that the first “signs” is emphasized in the original). Blackstone adds that “the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.”

Just so! But, once again, Posner goes too easy on Scalia, because Scalia’s whole premise in his essay on common law courts, to which gofx pointed me, is that the modern theories of Constitutional interpretation so abhorent to Scalia are basically extensions, albeit extreme extensions, of common-law judging in which the judge tries to find the best possible outcome for the case he that he is deciding, unconstrained by any statutory or Constitutional text. It is the lack of subordination by common-law judges to any authoritative legal text with a fixed meaning that they are bound to accept that is the ultimate heresy of which all common-law judges, in Scalia’s eyes, stand convicted. But when the US Constitution was ratified all the judges in America and Britain were common-law judges. And Blackstone’s magisterial Commentaries on the Laws of England was a four-volume paean to the common law of England. So, under Scalia’s own originalist doctrine, the meaning of the judiciary in the US Constitution, written by the Framers under Blackstone’s thrall, was the kind of judging practiced by common-law judges. The judges who interpreted the Constitution for almost two centuries after the Constitution was ratified were common-law judges and they were interpreting the Constitution using the very interpretative methods of common-law judges that Scalia so violently condemns.

Scalia has literally hoisted himself by his own originalist petard. Couldn’t have happened to a finer fellow.


9 Responses to “The Incoherence and Bad Faith of Antonin Scalia’s Originalism — Updated”

  1. 1 gofx February 7, 2017 at 7:28 pm

    David- I’m glad that Scalia reference was useful to you. I never thought I’d rate a post! But you’ve moved the goal posts on me! My point was that Gorsuch is not “denying reality” when he essentially says what he thinks judges should do, and what he thinks they should do is contained in a recognized legal philosophy/theory. Now you apparently disagree with that theory and believe it to be inconsistent and self-contradictory, and that’s all well and good.

    It appears there are several legal theories regarding constitutional/law interpretation. You have a Textualist like Scalia, an “Intentionalist” like Bork or “Legal Process” (what did the legislature intend [let’s as K. Arrow about that!]) and a Pragmatist like Posner. I’m sure there are other schools of thought (Natural Rights?).

    I don’t think Textualism means “no judgment allowed”. To me, a definite non-lawyer, it would appear that some of this debate is a line-drawing exercise (judgement!) on how to best apply necessarily somewhat abstract laws to specific situations. Aristotle is thought to have started this, but for my money it started when “Og” and “Ug” were disputing who found the cave first. Maybe this is like rules-based monetary policy vs. total Fed discretion…..

    I think the more originalist-oriented are fearful of concentrated power. Judges, especially higher court judges are very unique in our governance. They generally (1) wield great power over our lives; (2) are few in number; (3) are unelected; (4) serve long or unlimited terms; and (5) are difficult to remove from office. Having philosophical guard rails on such powerful people is a good idea. I remember people’s disgust when several judges gave almost negligible sentences in some sexual assault cases and it rekindled the debate on legislative rules (e.g.“mandatory minimums”) vs “judgment”.

    It is no secret Posner dislikes Scalia, but I there are rebuttals to his New Republic critique of Scalia/Garner (Wheelan, for example, but there are others.) or

    As to your last part about the founders and referencing common law judging, I’d say that our founders were writers. They wrote the Federalist Papers, they wrote down the Declaration of Independence; then, skip ahead, they wrote the Constitution;– and then, even though they thought they were already in the Constitution, for good measure, they wrote the Bill of Rights. Britain does not have a written constitution and common law initially developed there when there were Kings and no legislature. Britain had—- to use a Posner phrase—-, a lot of “legal gaps” to fill ! Why did our founders right down so much? Why did they create a legislature (Two, count’em – two houses!)—especially with all that existing common law out there?


  2. 2 David Glasner February 9, 2017 at 12:29 pm

    gofx, My accusation of bad faith on Scalia’s part stems from his refusal to acknowledge — though he did so obliquely in his Tanner lectures — that he is repudiating the many-centuries old Anglo-American legal tradition of common-law judging. He may say that the subject matter dealt with by judges now is different from the subject matter dealt with by the common law judges, but that provides no rationale or justification for saying that the way in which judges approach the task of judging a case is any different when judging modern cases than when judging the traditional common-law cases.

    Moreover, he is indulging in his own brand of living constitutionalism when he asserts that because judges are not dealing with the kinds of cases that they used to deal with they should be obliged to change their methods of judging. Who is Scalia to say that the methods of judging that were accepted and legitimate when the Constitution was ratified are no longer legitimate. If that’s not a rejection of originalism for living constitutionalism I don’t know what is. The hypocrisy is breathtaking.

    I am not a fan of Constitutional Law, which seems to me to be full of mistakes and bad decisions. But it is a ridiculous bit of philosophical arrogance on Scalia’s part to think that the bad decisions are the result of judges not sticking to the original meaning of the texts. That is a totally rationalist (in the Oakeshottian sense of the word) conceit. We need better judges not a better theory of constitutional interpretation.

    Thanks for providing me with the responses to Posner’s review. It appears that Posner’s attacks on Scalia were not all accurate. However, almost none of the mistakes that Posner supposedly made were of cases that I mentioned. And the discussion of the ambulance hypothetical shows that Scalia was willing to acknowledge that a common-law principle could justify a statutory interpretation different from what would otherwise be the plain statutory meaning thereby vindicating the decision in Riggs.


  3. 3 gofx February 9, 2017 at 5:56 pm

    Thanks, David. Well maybe there is a middle ground. There’s another Posner at Chicago that seems to agree with you when judges are working with “everyday “law, but finds Dworkin wanting when applying common law principles to the Constitution. –

    But I will also circle back to Riggs as you did. What would society in NY have been had the majority of the court found that because there was no statute preventing Palmer from profiting from his murder (I guess in jail), they could not prevent that from occuring. Isn’t that a call to the state legislature to enact a law that says felons or criminals shall not receive gain or benefit from any contract as a result of their crime? Doesn’t this happen now? Aren’t there instances where a criminal actually goes free because the statute doesn’t cover an offense, and a subsequent statute is passed?
    So again, it is a line drawing exercise on the optimal amount of “judgement” we should allow a small number of unelected officials. Maybe there’s a public choice paper to write in all this. Should a supermajority of the legislature be allowed to overturn a decision? Where is the optimal balance of power among the branches?


  4. 4 David Glasner February 9, 2017 at 7:56 pm

    Thank you, gofx, for the link to Eric Posner’s piece about Dworkin, which I largely agree with. Much as I admire Dworkin, I share Posner’s misgivings about judges who base sweeping Constitutional conclusions from abstract moral reasoning not securely based in legal doctrines. But the range of reliable legal doctrines is far broader than statutory or Constitutional texts. The other principle of adjudication that I would emphasize as well is that judges should, as a general rule, try to decide cases parsimoniously, relying on the narrowest grounds necessary to decide the case at hand, rather than trying to lay out a broad ruling covering a whole range of cases. I think that was where Justice Blackmun may have erred in deciding Roe v. Wade. He could have decided the case on narrower, less controversial, grounds than he relied on, allowing the law to evolve more gradually and organically. I think that is the appropriate way for a philosophy of judicial restraint to be applied rather than invent a dogmatic ideology like originalism with which to prevent judges from acting like judges.

    I’m sorry, for the life of me, I can’t understand why you a judge should not decide a case using a well-established common law principle to decide that case before him, presumably preventing another heir from being dispossessed form his rightful legacy, just so the legislature can amend a statute to prevent a future miscarriage of justice but not the one that would result from such an act of false judicial modesty. There is a big difference between not imprisoning a defendant based on a legal technicality and dispossessing the rightful heir of a legacy in favor of the convicted murderer of the testator. The fact that the murderer is still imprisoned doesn’t help the rightful heir a single bit. If the legislature doesn’t like a judicial decision and wants to make sure that murderers can inherit their victims, they can always do so. I don’t know why this sort of abstract ideological nitpicking about the formalities of democracy is such a big deal. I am all in favor of democracy, but I don’t see why we need to make a fetish out of it. Certainly the founders were not fanatical democrats. The Constitution is full of stratagems, like the electoral college, by which to dilute and temper majority rule.


  5. 5 John Ashman March 7, 2017 at 8:43 am

    The writer doesn’t seem to understand the purpose of the Constitution and all errors fall freely from there. The Constitution sets the outermost boundaries of common law and judges who exceed it do so in violation of their oath. “UNDER” the Constitution. Not over it. Scalia isn’t a perfect originalist, but imperfect is still better than willfully incorrect.


  6. 6 David Glasner March 7, 2017 at 9:29 am

    John, Sorry if I don’t understand the purpose of the Constitution. I think I do, but I admit that I could be mistaken. But I certainly don’t understand what you mean by “the outermost boundaries of common law” or what it would mean for “judges to exceed it.” It might be helpful to know what the antecedent of “it” is in that passage. I am guessing that the antecedent is either “common law” or “boundaries,” but neither one seems to fit very well.


  7. 7 John Ashman April 2, 2017 at 2:51 pm

    IOW, common law doesn’t apply to the Constitution, but only that which fits within it. The Constitution is the perimeter for law and none of the branches can surpass it, yet that’s all that the critics of originalism apparently want it to do, but only to their benefit.


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About Me

David Glasner
Washington, DC

I am an economist in the Washington DC area. My research and writing has been mostly on monetary economics and policy and the history of economics. In my book Free Banking and Monetary Reform, I argued for a non-Monetarist non-Keynesian approach to monetary policy, based on a theory of a competitive supply of money. Over the years, I have become increasingly impressed by the similarities between my approach and that of R. G. Hawtrey and hope to bring Hawtrey’s unduly neglected contributions to the attention of a wider audience.

My new book Studies in the History of Monetary Theory: Controversies and Clarifications has been published by Palgrave Macmillan

Follow me on Twitter @david_glasner


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