The Posner-Scalia row—the latest round | Bleader

Monday, September 24, 2012

The Posner-Scalia row—the latest round

Posted By on 09.24.12 at 01:48 PM

Not always sweetly
  • Not always sweetly
When we last looked in on Supreme Court justice Antonin Scalia and federal appellate judge Richard Posner, they were insulting each other. That continues.

In a recent post, I focused on Posner's review in the New Republic of a new book Scalia cowrote with Bryan Garner: Reading Law: The Interpretation of Legal Text. The book champions Scalia's favored approach to interpreting law—textual originalism. And it offers 57 "canons of construction"—principles that should guide judges as they do their interpreting. Posner was not impressed.

He identified Scalia as a "pertinacious" foe of the use of legislative history to interpret law, Scalia's grounds being that legislative majorities consist of so many members supporting the law they're enacting for so many different reasons that there's no clarity to be gained by examining their motives. And yet, Posner continued, when it suits Scalia he's willing to hold his nose. "When he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history."

And Posner went on, "Omitting contrary evidence turns out to be Scalia and Garner's favorite rhetorical device." He wrote, "A problem that undermines their entire approach is the authors' lack of a consistent commitment to textual originalism. . . . In their variety and frequent ambiguity [their] 'canons' provide them with all the room needed to generate the outcome that favors Justice Scalia's strongly felt views on such matters as abortion, homosexuality, illegal immigration, states' rights, the death penalty, and guns."

In other words, Scalia is intellectually dishonest.

The other day, Scalia and Garner were interviewed by Reuters. The interviewer reminded the two authors of what Posner had to say about legislative history. Scalia's reply was blunt.

"Only in writing for a nonlegal audience could he have made that point," Scalia said. "Because any legal audience knows what legislative history is. It's the history of the enactment of the bill. It's the floor speeches. It's the prior drafts of committees. That's what legislative history is. It isn't the history of the times. It's not what people thought it meant immediately after its enactment. It's not what laws were continued in effect despite this. That is simply not legislative history. And to say that I use legislative history in how—is simply, to put it bluntly, a lie."

What about that? Reuters then asked Posner.

Posner rather lamely argued that he had not actually accused Scalia of using legislative history in deciding Heller. More effectively, he turned Scalia's coauthor against Scalia.

I had said that in seeking the original eighteenth-century meaning of the text of the Second Amendment Justice Scalia had been doing legislative history. His quest for original meaning had taken him to a variety of English and American sources from which he distilled the existence of a common law right of armed self-defense that he argued had been codified in the Second Amendment.

He may not consider such a historical inquiry to be an exercise of "legislative history," because he defines legislative history very narrowly (and in the interview calls it "garbage"). His coauthor, Bryan Garner, does not define it so. Here is the definition of the term in Black's Law Dictionary (9th ed. 2009), of which Garner is the editor: "The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates." The "background and events leading to the enactment" of the Second Amendment are the focus of the Heller opinion.

Posner added, for good measure, "Even if I accepted Scalia's narrow definition of 'legislative history' and applied it to his opinion in Heller, I would not be telling a 'lie.' For Justice Scalia does discuss the 'drafting history' (legislative history in its narrowest sense) of the Second Amendment."

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