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02/01/2013

Bryan Garner on Textualism (and Media Coverage)
Michael Ramsey

At Law Prose, Bryan A. Garner posts a letter to the Dallas Morning News: "I really must protest the paltry and even silly treatment of the Scalia–Garner event in the January 29 edition ... What is especially disappointing is that [the reporter] seriously misreported the gist of the joint presentation at SMU."  Well, welcome to originalism, pal.  If you want good media coverage you should probably be somewhere else.

More seriously, Garner makes this point:  "Justice Scalia and I worked through 700 cases while writing our 600-page book and have not found a single case on which we disagree about legal interpretation. The point is that judicial textualism leads to consistent results, regardless of political bent."

I think there's some truth to this idea, but also that it overstates and a way that can lead to caricature.  My approach to legal interpretation is generally textualist, yet I often disagree in result with others using a similar approach, including Justice Scalia (and Mike Rappaport).  Language is imprecise (if it weren't, many lawyers would be out of a job).  There will always be hard cases, and the idea that textualists/originalists think otherwise is a staple of the aren't-originalists-silly mode of criticism.

But I think Garner is right that textualism is more likely to generate agreement among diverse political views than most alternatives.  Indeed, this is a point I've made about the rise of textualism in the Court's statutory interpretation (as compared to its constitutional interpretation).  If the meaning of the text rather than the best result (whatever that might mean) is the focus of debate, common ground is easier to achieve.  "Easier" doesn't mean "easy," however.

(Via How Appealing).

A further thought: I like this comment from Justice Scalia, as quoted by Garner:

I used to say that the Constitution is not a living document. It’s dead, dead, dead. But I’ve gotten better. I no longer say that. The truth is that the Constitution is not one that morphs. It’s an enduring Constitution, not a changing Constitution. That is what I’ve meant when I’ve said that the Constitution is dead.