Analysis: Scalia’s classic ‘textualism’ will be his legacy

Staff line the steps of the Supreme Court as the casket of Justice Antonin Scalia is carried up on Friday, Feb. 19.
Staff line the steps of the Supreme Court as the casket of Justice Antonin Scalia is carried up on Friday, Feb. 19. Bloomberg

To the public, Justice Antonin Scalia was best known for his hard-line conservatism and his originalist constitutional thought. But to judges and lawyers, not to mention law professors, Scalia was better known for his distinctive philosophy for interpreting statutes, known as textualism. Scalia didn’t invent originalism. But he did invent textualism, at least as practiced by many judges today, and it stands as his most important contribution to legal thought.

Scalia’s death at 79 is a good occasion to ask whether textualism is here to stay. My answer is a qualified yes. Although I think Scalia’s originalism is likely to fade, the basic textualist method of interpreting statutes according to the words while eschewing legislative history and purpose has a future — because it has a past.

Aristotle believed laws should be rectified to fit the circumstances, not applied blindly.

To understand where textualism came from, go all the way back to Aristotle. The Greek philosopher understood that all interpreters of legal texts face a basic problem: Law is by definition abstract and general, yet human circumstances are concrete and varied. A good law is a rule that governs the majority of cases, but not every case will fit the aims of the law.

Interpreting the law

Aristotle favored the rule of law, which he has some claim to have invented. But that meant he had to explain what the law should do when its application would prove unjust in circumstances unanticipated by the legislator. His answer was that the law should be rectified to fit the circumstances, not applied blindly. The decision-maker must ask what a reasonable legislator would’ve intended the result to be in the particular case. This isn’t a question of actual legislative intent, because Aristotle was dealing with a situation the lawmaker didn’t anticipate. Instead, Aristotle offered a theory of hypothetical legislative intent: Ask not what the legislature did; ask what a rational legislature would’ve done had it foreseen the problem.

Scalia was educated at Harvard Law School at the height of an intellectual movement known as “legal process,” associated with professors Henry Hart and Albert Sacks. They taught that the way to interpret statutes was in light of their purpose, revealed in part by examination of legislative history.

This philosophy reflected the modern world of enormous and enormously complicated statutes inaugurated by the New Deal. It had Progressive origins, like the legislation it was designed to interpret. Today, the most important and articulate exponent of this interpretive approach is Justice Stephen Breyer, who was educated at Harvard about the same time as Scalia and then joined its faculty.

Scalia rejected the Aristotelian possibility of attributing rationality to the legislature and acting accordingly.

Textualism is best understood as a reaction against the legal-process idea of focusing on statutory purpose. Scalia began with a harsh attack on the idea that legislative purpose can be identified. It’s not only that legislative bodies are made up of many minds, as theorists of statutory interpretation had noticed since at least the 16th century. Scalia emphasized that a modern legislature reaches decisions by compromise and committee. To attribute purpose as a historical matter is therefore almost absurd: When it comes to legislative intent, he insisted convincingly, there’s no there there.

Rejecting rationality

With legislative intent ruled out, Scalia rejected the Aristotelian possibility of attributing rationality to the legislature and acting accordingly. A judge who did so, he argued, was simply substituting his own judgment for the legislature’s. In a democracy, this move was particularly unjustifiable, because legislators are elected and subject to re-election while federal judges are appointed and serve for life.

That left Scalia with the challenge of saying how the law should in fact be interpreted. His answer was to rely on the text, and nothing but the text. It’s been suggested that part of this idea can be traced to Scalia’s father, Salvatore Eugene Scalia, a Sicilian immigrant turned professor of Romance languages at Brooklyn College. The elder Scalia was a devotee of the school of literary thought known as the New Criticism, which sought to interpret poems as autonomous objects, without the historical or linguistic apparatus of earlier and later forms of criticism.

But Scalia could’ve reached his views without the New Criticism or his father — because the idea of interpreting legal text as written, not as it should’ve been written, goes back at least to the Greeks and the problem Aristotle was facing. And Scalia had a good answer to the argument that textualism would produce unjust results: If Congress didn’t like the results, it could change the law.

The reason this kind of textualism has legs is that it’s connected to the core ideal of law itself: applying abstract, general rules without concern for the results in the particular case. Contemporary textualists, most prominently my Harvard colleague John Manning, who clerked for Scalia, have refined the concept into what Manning calls “second-generation textualism,” epitomized in the more “modest” claim that “judges in our system of government have a duty to enforce clearly worded statutes as written,” even where the results may be mistaken or unjust.

Scalia, in other words, gave a rich and detailed modern context to an ancient idea about how laws should be interpreted. To be sure, Scalia was probably wrong about this, as by my lights he was about most other things. Congress is notoriously bad at drafting statutes, and there’s no strong reason for U.S. judges to produce injustice when they could do otherwise.

But Scalia’s formulation is classic and enduring. This will be his intellectual legacy — and it’s a great one by any measure.

Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.