- ISBN13: 9780691004006
- Condition: NEW
- Notes: Brand New from Publisher. No Remainder Mark.
Product Description
We are all familiar with the image of the immensely clever judge who discerns the best rule of common law for the case at hand. According to U.S. Supreme Court Justice Antonin Scalia, a judge like this can maneuver through earlier cases to achieve the desired aim–”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 the goal–good l… More >>
A Matter of Interpretation: Federal Courts and the Law
Tags: aim, antonin scalia, common law, federal courts, justice antonin scalia, remainder mark, supreme court justice
I’d like to mention, first of all, what this book it not. It is not for the casual observer of the American judicial system. Justice Scalia gives a probing examination of various methods used in Constitutional and judicial interpretation. If the reader is not consumed with learning law, or delineating the intent of the Constitution, this book will probably be a major disappointment.
On the other hand, if you have a solid foundation of knowledge on the judiciary and the U.S. Constitution, you will enjoy this book and will learn a great deal of what Justice Scalia has to offer. Scalia offers up a 50 page paper on the various methods of judicial interpretation, each methods strengths and weaknesses, and the how and why of whether or not each method is viable.
Scalia’s paper is then cross-examined by Ronald Dworkin, Mary Ann Glendon, Amy Gutmann, Lawrence Tribe and Gordon Wood. Scalia then offers up his rebuttal and I believe, strengthens his theories of judicial interpretation. I am not going to go into my own how’s and why’s, as I am a fan of Scalia’s and would rather allow the reader to reach their own conclusions.
Whether you like this book, or hate it, one thing is for certain, you will come away with a much better knowledge of the U.S. judicial system, how it reaches some of its conclusions, and what the consequences of continuing with current methods of judicial interpretation will be on our country.
Monty Rainey
http://www.juntosociety.com
Rating: 4 / 5
I assume you have seen a description of the book already. The book is good enough to be recommended overall, but there were some disappointments. First, the justice does not stay long on his professed topic, the interpretation of statutes, but goes over into constitutional interpretation. Those who make replies follow gladly, and there is really little on the whole about statutory instead of constitutional interpretation. Moreover, the justice did not make it clear enough to me how his textualist philosophy differs from literalism, which he explicitly disavows. Also dissappointing is that I think the justice could have made a much stronger case for what I do glean to be his philosophy by invoking legal principles already understood when the constitution was written, and especially by invoking Justice Story’s brilliant decision in Martin v Hunter’s Lessee. In that decision rules of constitutional interpretation are stated clearly and authoritatively, and are much along the lines of what Scalia advocates. Lastly, Justice Scalia’s essay does not measure up to the keenness of insight and language he shows in his best dissents, though there are some good moments.
Despite these drawbacks, it is a very thought- provoking work and its brevity gives one less of an excuse for not reading it. It is largely free of technical vocabulary and there are no arcane discussions.
Rating: 4 / 5
I loved the format of the book! Scalia presents his judicial interpretative process, and honestly admits hypocrisy when he occasionally votes ideology rather than using his system. Then, rather than providing a half-hearted attack on his ideological opponents, he invites them to respond to his thesis, each with their own chapter!
You may not agree with Scalia, but you can’t doubt his moral courage based on his invitation for criticism in his own book.
I also appreciated the chapter on the structure of Germany’s Constitution to help us understand why principle, rather than statue, plays such a big role in American judicial interpretative processes.
Everyone that cares about the Supreme Court should read this book. I have yet to find a better book to learn the motivations and processes utilized by each ideological camp. After reading this book, my ability to understand the logic of the court, for both rulings and the opinions, has been greatly enhanced.
While unintended, Scalia also helped cement my personal belief that a blend of original meaning (aka textualism) and abstract principalism, and not Scalia’s textualist approach alone, is by far the optimal method for judicial interpretation based on our Constitution.
Rating: 5 / 5
Antonin Scalia is blessed with a powerful intellect and a persuasive manner of expression. It’s about time that a member of the US Supreme Court explained in terms intelligible to the average “newspaper reader” just what is going on in federal appeals courts. If not all of Justice Scalia’s recommendations are correct, he certainly, at long last, has been able to ask the right questions. Proponents of judicial activism (and Scalia graciously shares space with two of the most famous, Tribe & Dworkin) will be hard-pressed to keep up the pretense that federal courts today are much more than arenas for elite social engineers to rework society in their own image and likeness. A fine study in modern legal philosophy, I recommend this work with few reservations. My complete review of Justice Scalia’s book can be found in “National Catholic Register” 26 Oct. – 1 Nov. 1997, p. 6. I have seen the review posted on the Web as well.
Rating: 4 / 5
In this tidy book, Justice Scalia puts forward his theory of jurisprudence and takes on the subject of judicial philosophy and what he calls the modern movement of judicial activism. He begins by giving an overview of the history of common law and judicial review, in which he contends that judges historically respected stare decisis – that is, previous rulings. Only in modern times, with the rise of democratic activism, has the desire of judges to “make law” become a problem of significant proportions.
Scalia then gets to the heart of his argument – that the role of the judge is not to ascertain the intent of legislators, but rather to ascertain the meaning of the words contained in a particular document. In this sense, he a textual purist compared to activists who will search out the meaning of particular pieces of legislation by evaluating legislative history, popular press, Congressional record, etc. He concedes that language must be interpreted, but he argues that there is a disciplined approach, and a liberal approach. The disciplined approach he supports would evaluate text within the notion of reasonable interpretation, “placed alongside the remainder of the corpus juris.”
“Government by unexpressed intent is simply tyranny,” Scalia argues. “That seems to me the essence of the famous American ideal set forth in the Massachusetts Constitution. A government of laws, not of men. Men may intend what they will; but it is only the laws that they enact which bind us.”
Scalia argues that the fact that some texts bear multiple interpretations does not sink the enterprise of textualism. The divide on constitutional questions is not between what the framers intended and what they wrote, but rather between original meaning and current meaning. Scalia argues it is precisely the threat of abolishing cherished rights that makes original meaning important – it is a protection against those, (say Nazis) who would seek to impose a new order or new interpretation of acceptable governance. He argues that the notion of a “living constitution” has narrowed the straits of American freedom, not expanded them. The prevailing mood may or may not be just in the eyes of history, but leave that to the legislators and the great debates among thinkers and politicians; don’t seek to encode today’s moods in tomorrow’s constitution through judicial activism. The avenues for changing the constitution and expanding its purview are well known — otherwise, leave legislating to the legislatures.
Tribe and Dworkin offer the most interesting rebuttals. Dworkin seeks to root constitutional interpretation in broad principles of understanding and rights; Tribe concedes he has no theory of jurisprudence, other than he finds it difficult to accept the certitude of either Dworkin or Scalia that they have the right interpretation. His is a strange argument. Scalia never says the Constitution does not bear multiple interpretations, but he does argue for a more disciplined approach, in which rights are not found willy nilly in the minds of judges and then imposed on the original document by which we are governed. One annoying aspect the book: Tribe responds both to Scalia’s original essay and his counter rebuttal within the first rebuttal — before we have even read Scalia’s response. This got a tad confusing and did not add much to the overall discussion.
Rating: 4 / 5