Akhil Amar on Scalia & Garner (and Ed Whelan and Bryan Garner on Amar)
Akhil Amar reviews Scalia & Garner' Reading Law: Originalist Sin: The new book by Antonin Scalia and Bryan Garner is very sure of itself -- in fact, far too much so.
Ed Whelan comments: Akhil Amar's "Mangling" of Scalia/Garner Book, Part 1 and Part 2. From the introduction:
Amar’s primary claim in his review—one that consumes more than half its pages—is that Scalia and Garner have “badly misstated the matter” of the “absurdity doctrine” by offering a “reading of Blackstone [that] is flatly erroneous.” For Amar, their supposed “misstat[ement of] the venerable Blackstonian doctrine of absurdity”—indeed, their “mangling of some of Blackstone’s most notable passages”—“raises questions about the general reliability of Reading Law as a work of sound scholarship.”
Unfortunately, it is Amar who mangles his reading of what Scalia and Garner have to say on the absurdity doctrine. ...
As an aside: Mike Rappaport and I debated the absurdity doctrine a while back, see here (me), here (Rappaport), here (me) and here (Rappaport), with assistance from Michael Stern and Seth Barrett Tillman. Ed Whelan's thoughts on absurdity, in part 2 of his post on Amar, seem right to me.
As a further aside, as Ed Whelan notes, Bryan Garner had this rather harsh review a while back of Professor Amar's recent book America's Unwritten Constitution: America's Nonexistent Constitutions. From the conclusion:
What Amar wants is an oxymoron: “staying true to the written Constitution while going beyond it.” Go any which way you like, as long as your interpretations are “rights-expanding” (left-leaning) and overbroad. You can’t go wrong.
I recognize that Amar has a copious, wide-ranging, and stimulating intellect. The book is full of insights that could be put to good use. It’s just that Amar hasn’t done so. He has tried as strenuously as any other like-minded scholar to undo the old doctrine that a written constitution is permanent.
But, returning to Professor Amar's review, what strikes me about it (and, even more so, about an earlier review by Richard Posner) is how petty it is. As Ed Whelan notes, the main point of the review seems to be that Scalia and Garner misread Blackstone's view of the absurdity doctrine, an issue that takes up about five pages in a 400-plus-page book. And as Whelan further points out (correctly, I think), Amar's criticism is misplaced because Scalia and Garner don't purport to be describing Blackstone's view.
Surely there are more weighty criticisms of Scalia and Garner. Here is one, exemplified by the book's treatment of the absurdity doctrine but generalizable to the whole book. Scalia and Garner attempt to set forth a definitive list of canons of interpretation (including the absurdity doctrine) that are applicable generally to the interpretation of legal texts. Where do these canons come from? The book never sets out a methodology for identifying them. They seem to be what the authors think are the "best" canons. At times the authors try to link them to longstanding and consistent judicial practice, but that linkage is impressionistic, not systematic. For the absurdity canon, for example, Scalia and Garner say it "must be subject to two limiting conditions," for which they cite Joseph Story, a modern law review article, and some twentieth century cases (pp. 237-38); as Ed Whelan says (contra Amar), they do not rely on Blackstone.
Especially as applied to interpretation of the Constitution, why should these scattered citations be sufficient? If we are trying to determine how the founding generation would have read a constitutional provision, wouldn't Blackstone (or other eighteenth-century sources) be the right place to look? Or if we are looking for the "best" form of the canon (rather than the one generally accepted at the time the text was written), then (a) how is that consistent with the idea "that a written constitution is permanent"?; (b) how does one define "best" in this context?; and (c) in any event, who cares what Justice McKenna said in 1913 [see p. 238, footnote 14]?
To be clear, I think Scalia and Garner are probably right about the absurdity doctrine, as they are probably right about most of their canons. But the book is systematically underdeveloped on the sources of the canons it proclaims. It's disappointing that academic reviewers are mostly inclined to nitpick (and to nitpick not very effectively) instead of engaging the deeper questions the book raises.