Howl of the Day: Feb 22, 2016

“The law,” wrote Aristotle in his Politics, “is reason unaffected by desire”.1

This view is complicated by Aristotle himself, particularly in his treatment of legislators, those who make the law, and foundings, when laws are born. But despite that, the view so expressed does not lose much of its basic persuasive impact, nor any of its practical importance. The difference between any regime and its degenerate form is often to be found in whether or not the law is regarded therein as an expression of passionless reason, and respected accordingly.

Perhaps no recent justice of the American Supreme Court was as concerned with this idea as the late Antonin Scalia. There have been and will, of course, continue to be questions about whether Scalia understood the issue sufficiently well, and whether he bore out his own view of the matter consistently in his actual judgements, and so on. But there can be little dispute that he regarded the issue as a central one and that he compelled others, friends and foes, to do the same.

Indeed, it is this very concern with rule of law, and with the way that people conceive of law, that lay at the heart of Scalia’s teachings regarding principles of Constitutional interpretation. His theory of originalism, expressed eloquently and with verve in his A Matter of Interpretation: Federal Courts and the Law, published by Princeton in 1997, is an expression of this concern. Scalia wrote there, of the extent to which his theory was formalist, that formalism is a good thing, because it is precisely that which “makes a government a government of laws and not of men”.

In Scalia’s essay in A Matter of Interpretation, the author defines originalism as careful attention to what the text of the law means, as opposed to what the the intention of the legislator(s) who passed it might have been. When one reads (or re-reads) this essay, along with the critical pieces which follow it in the volume, written by prominent legal scholars, Ronald Dworkin, Mary Ann Glendon, Gordon Wood, and Laurence Tribe, it is almost easier to be struck by how much these critics agree with Scalia when it comes to rule of law than it is by the challenges they pose to him.

Even Ronald Dworkin, the great proponent of legal interpretivism, here took issue less with Scalia’s general position, and more with what he regards as too narrow a conception of originalism. Dworkin argues, persuasively on this point, that not all originalists can be the same, and that some are concerned more with what the authors of the Constitution meant to say, whereas others are more concerned with what those authors meant to bring about by saying what they did. In his view, Scalia privileged what Dworkin called “semantic intention”, at the expense of “expectation intention”. Whether this criticism is fatal to Scalia’s teaching or merely a corrective to it is a matter for continued debate.

But all of this further recalls the fact that, although Scalia was himself a political conservative, his most abiding theoretical work, as well as his expression of it as the theory of originalism, won adherents on both sides of the partisan divide. Perhaps there can be no greater tribute to the integrity of his work, and to the integrity of many of his critics, than that.