That's Your Opinion

In The New Republic, Richard Posner takes on Atonin Scalia and his recent book on judicial interpretation. Posner--who's known Scalia for decades--doesn't hold back (and to no one's surprise his piece has been attacked by conservatives). Those familiar with Judge Posner's thoughts on jurisprudence won't be surprised.  To Posner, anyone who claims to be an originalist, capable of coming up with objective, non-political decisions, is either lying or fooling himself.  You can't just look at the words of a law, old or new, and know what it must mean in every case.

Language contains ambiguity, and lawmakers can't figure out every eventuality.  It's up to a judge to figure how best to fit the law to the present circumstances, and using the dictionary definition of every word in a statute at the time it was passed (difficult in itself, as Scalia once admitted to me) can only get you so far.  To figure out the intention of the legislature (and that's assuming you consider the intention controlling, and what level of intention at that) is not a math problem, it's a matter of interpretation. (Why do you think they're called "opinions"?) All sorts of issues may be relevant--the meaning of the words is just the starting point.  The grand notions of our Constitution can be argued back and forth, but, as Posner notes, even relatively simple things, like what does "sandwich" or "animal" mean within a statute, isn't obvious.

Scalia can't help but recognize this so allows himself enough outs, such as canons of construction, that give him room to maneuver.  But what of textualism, then, when certain canons allow the "originalist" to make decisions based on so many things in addition to the mere words or the law?  The original concept of originalism seems to evaporate.

Every judge has to work from some theory, consciously or otherwise, even as they claim to be umpires calling balls and strikes.  Originalism is a popular theory on the right since it so often leads to conservative decisions (though it's easy enough to couch any opinion in the language of originalism if desired).  One wonders how popular originalism would be if it led to more liberal opinions.