I'm going to comment on Posner's review:
I agree with Scalia's position regarding the role of judges, but disagree with his hermeneutic. As such, Posner may score some valid points against Scalia's hermeneutic. Of course, Posner has an ax to grind. He's attacking Scalia's position to clear the way for Posner's alternative. And I don't agree with Posner's alternative, which is far worse than any deficiencies in Scalia's hermeneutic.
Before commenting on his review, let's put his review in perspective. What's his alternative? Here's a sample:
It is natural to think that constitutional rights are rights stated in the text of the Constitution of the United States. But it is wrong, not completely but in an important sense. Constitutional rights are created mainly by the Supreme Court of the United states by "interpretation" of the constitutional text. I put the word in scare quotes because the line between judicial interpretation and judicial creation is frequently–particularly in the case of American constitution law–fine to the point of invisibility.
For the most part either the provisions are vague, such as the Fourth Amendment's prohibition of "unreasonable" searches and seizures…or they have an eighteenth-century meaning that if strictly adhered to today would render them largely obsolete. For example, "searches" and "seizures" could not in 1789 have encompassed wiretappings and other electronic surveillance. R. Posner, Not a Suicide Pact (Oxford, 2006), 17-18.
Several problems:
i) Notice how his view reduces the Bill of Rights to an Etch A Sketch. It means whatever judges impute to it. But that defeats the whole purpose of having a written Constitution.
ii) The text has a context. What the Framers were opposing. The whole point of the Revolutionary War. You also had continuity with Colonial American cultural values.
To say it needs to be interpreted is not to say that the interpretive frame of reference is arbitrary. It includes the Federalist and Anti-Federalist papers, minutes of the Constitutional Convention, correspondence by Founding Fathers, ratification debates, John Locke, Edmund Burke, &c.
iii) To the extent that the provisions are sketchy, that doesn't mean they must be penciled in judges. Details can be supplied by statuary law. That's what the legislative branch is for–among other things.
iv) We need to distinguish between what the Constitution prescribes, proscribes, and permits. The silence of the Constitution makes room for supplementary legislation that's consistent with the Constitution.
v) The business about electronic surveillance is willfully obtuse. Posner is a very smart man, so he knows that's a malicious and dismissive caricature. Unreasonable searches and seizures concern a general principle that's separable from 18C technology. The particular means is not the point at issue. Any particular means will exemplify the underlying principle. He's confounding culturebound instances of the principle with the principle itself, which is transcultural.
Turning to his review:
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.
There are different ways of finessing that issue:
i) You could bite the bullet and say it's not the job of judges to retrofit poorly crafted laws. If lawmakers think there should be an exception for emergency vehicles, it's up to them to write that into the law. This isn't pedantic. It's about having social policy determined by elected representatives.
ii) However, human communication typically involves unstated conditions or qualifications. As C. S. Lewis said, in reference to prooftexting pacifism from the Sermon on the Mount: "I think the text means exactly what it says, but with an understood reservation in favour of those obviously exceptional cases which every hearer would naturally assume to be exceptions without being told."
iii) Finally, we need to be very judicious about the exceptions we make for gov't officials. Congress has a bad habit of exempting itself from laws which it imposes on everyone else. Police can run over a pedestrian because the policeman was looking at his computer screen rather than the road. If you and I did that, we'd be charged with vehicular homicide, but the policeman won't be charged or even fired. Likewise, there are lawmakers who want to make it illegal to photograph police activities in public spaces.
In United States v. Eichman, for example, he voted to hold a federal statute forbidding the burning of the American flag unconstitutional, and it was certainly a vote against his ideological grain. But it is a curious example for a textual originalist to give. The relevant constitutional provision—“Congress shall make no law abridging ... the freedom of speech”—does not mention non-verbal forms of political protest, and Scalia and Garner insist that legal terms be given their original meaning lest the intent of the legislators or the constitution-makers be subverted by unforeseen linguistic changes.
That's a common objection to originalism. But it operates at too low a level of abstraction. Originalism concerns general principles. The principle is not exhausted by a particular application. Nonverbal communication is still communication.
According to William Blackstone, whom Scalia and Garner treat as an authority on American law at the time of the Constitution, freedom of speech forbids censorship in the sense of prohibiting speech in advance, but does not prohibit punishment after the fact of speech determined by a jury to be blasphemous, obscene, or seditious.
I think that oversimplifies the historical record. For instance, the 1798 Sedition Act was very controversial.
The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke “motivated thinking,” the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.
Posner's objection is self-refuting inasmuch as he himself attempts to disprove Scalia's position on historical grounds.
But 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.
A valid objection. That, however, only applies to Scalia's particular brand of originalism.
Judge Easterbrook’s foreword to Scalia and Garner’s book. The foreword lauds the book to the skies, but toward the end it strikes the following subversive note: “Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption understood those words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably.” When that happens, Easterbrook continues, the courts should “declare that meaning has been lost, so that the living political community must choose.” The “living political community” in Heller consisted of the elected officials, and the electorate, of the District of Columbia.
i) The point of having a Bill of Rights in the first place is to limit the purview of gov't officials.
ii) In addition, it's simply preposterous to act as though the import of the Constitution is shrouded in obscurity. This isn't like decrypting random cuneiform tablets at Ebla, then laboring to piece together a coherent interpretation from the fragmentary evidence. The Constitution issues from a very well-documented time and place. If anything, the challenge is not from the sparsity of background information, but the abundance of background information.
Reading Law quotes approvingly Joseph Story’s analysis of preambles—“the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute”—but fails to apply the analysis to the preamble of the Second Amendment, which reads: “A well regulated Militia being necessary to the security of a free State.” The preamble implies that the Second Amendment (which creates a right “to keep and bear arms”) is not about personal self-defense, but about forbidding the federal government to disarm state militias. Contra Story, Justice Scalia treated the preamble dismissively in his opinion in Heller.
Which overlooks the fact that militias presupposed private gun ownership. These weren't service-issue firearms. The gov't didn't supply the firearms.
Scalia and Garner applaud a decision (State by Cooper v. French) holding that a refusal to rent a house to an unmarried heterosexual couple did not violate a statute forbidding discrimination in rentals on grounds of “marital status,” a term not defined in the statute. The court relied for this conclusion on another statute, one forbidding fornication.
i) The landlord did not discriminate on the basis of marital status, but homosexual activity, so that's not even a prima facie violation of a statue forbidding discrimination on the basis of marital status. You don't even have to invoke a statute forbidding fornication.
ii) Moreover, this is not a question of what the law forbids, but what the law allows. I think landlords should be free to discriminate, even if they do so for improper reasons.
They also say that “a sign at the entrance to a butcher shop reading ‘No dogs or other animals’ does not mean that only canines, or only four-legged animals, or only domestic animals are excluded.” That is certainly right, but it is not right by virtue of anything textual. It is right by virtue of the principle that meaning includes what “would come into the reasonable person’s mind,” or what we know an author has “in mind” in writing something. On such grounds (which surprisingly the authors embrace as well) a sign that says “No dogs, cats, and other animals allowed” must be read to include totally unrelated animals (contrary to the principle of eiusdem generis—the “canon,” which they also approve, that a last general term in a series is assumed to be of the same type as the earlier, specific terms) because “no one would think that only domestic pets were excluded, and that farm animals or wild animals were welcome.” Right again! But right because textualism is wrong. Similarly, although a human being is an animal, a sign forbidding animals in a restaurant should not be interpreted to ban humans from the restaurant. It is the purpose of the sign, not anything in the sign, that tells you what meaning to attach to the word “animals” among its possible meanings.
I largely agree with this. However, Posner is guilty of sleight of hand. He may think humans are animals on evolutionary grounds, but that doesn't figure in a dictionary definition of "human" or "animal".
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.
That may well be inconsistent with what Scalia has said elsewhere. But you can relieve an inconsistency in more than one direction. There's a reason laws should be make by lawmakers. It's not an artificial technicality. Rather, it goes to the principle of popular sovereignty. We elect representatives to act on our behalf. They are answerable to the governed.
It is a singular embarrassment for textual originalists that the most esteemed judicial opinion in American history, Brown v. Board of Education, is nonoriginalist. In 1868, when the Fourteenth Amendment was ratified, the provision that states not deny to any person the “equal protection of the laws” meant that states—the former states of the Confederacy being the particular concern, of course—must not deny legal protection to the newly freed slaves (and to blacks more generally). In particular, states could not, without facing legal consequences, turn a blind eye to the Ku Klux Klan’s campaign of intimidation of blacks and carpetbaggers. Had the provision been thought, in 1868, to forbid racial segregation of public schools, it would not have been ratified.
i) Posner says "Had the provision been thought, in 1868, to forbid racial segregation of public schools, it would not have been ratified."
I'd like to see some documentation for that claim. The amendment was ratified by a combination of northern and southern states. One question is how many states that ratified the amendment even had Jim Crow laws at the time that would be put in jeopardy by ratifying the amendment.
ii) Posner's implicit argument is that it would not be in the perceived self-interest of those states to ratify the 14th amendment if they thought it forbad racial segregation in public schools. Although that sounds reasonable, perceived self-interests in complex. For instance, the border states had slaves. If they wished to maintain the status quo, why not join the Confederacy? Evidently, they felt they had more to lose by siding with the Confederacy than by siding with the Union, or at least remaining neutral.
iii) To my knowledge, the 14th amendment was a response to Black Codes, which were the Jim Crow laws of the day. It was designed to strike down Black Codes. Since they were equivalent to the Jim Crow laws that later took their place, it seems to me that Brown v. Board is a legitimate application of the 14th amendment.
iv) This also goes back to the question of general principles. Originalism analogizes from general principles and period precedent to comparable situations today.
v) But suppose, for the sake of argument, we grant Posner's claim that Brown v. Board is incompatible with originalism. Is that a reason to junk originalism?
There's an obvious danger with a result-oriented criterion. That's a double-edged sword. Sure, there are examples of judicial activism we like. But we pay a price for that. There's a reason Posner uses Brown v. Board rather than Dred Scott to illustrate his argument.
vi) You are ceding power to judges to determine what rights you have. But what judges can give, judges can rescind. It's a gamble. Sometimes you win, sometimes you lose, and it's out of your hands. You've surrendered control to the judiciary.
I prefer remedies that make the people the boss, not the gov't. I prefer remedies that make gov't dependent on the governed, rather than making the governed dependent on gov't. Take Martin Luther King's bus boycott. That showed the power of the customer. That's better than gov't intervention. That's the people using their own power to leverage the outcome.
Or take civil disobedience. If a sizable percentage of the population simply flouts a law, it becomes unenforcible. If authorities attempt a crackdown, they will be turned out of office. That shows who's boss. Or take Korean store owners who armed themselves to protect their business against "rioters" (i.e. looters).
vii) The liberal establishment tries to keep minorities weak, docile, and compliant, then throw them bread crusts. Even when the liberal establishment promotes minorities, these are figureheads. They must tow the party line. Look how the mavericks are treated (e.g. Clarence Thomas, John Yoo, Condi Rice, Miguel Estrada, Janice Rogers Brown).
It reminds me of nature shows about wolf packs, where you can watch the dominance/submission dynamic between alpha wolves and beta wolves. The betas assume a submissive, vulnerable position. Offer their neck or underbelly to the alpha wolf to prove their allegiance. That's the problem with judicial imperialism.
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