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Reading Law: The Interpretation of Legal Texts
In this groundbreaking book, Scalia and Garner systematically explain all the most important principles of constitutional, statutory, and contractual interpretation in an engaging and informative style – with hundreds of illustrations from actual cases. Is a burrito a sandwich? Is a corporation entitled to personal privacy? If you trade a gun for drugs, are you “using a gun” in a drug transaction? The authors grapple with these and dozens of equally curious questions while explaining the most principled, lucid, and reliable techniques for deriving meaning from authoritative texts. Meanwhile, the book takes up some of the most controversial issues in modern jurisprudence. The authors write with a well-argued point of view that is definitive yet nuanced, straightforward yet sophisticated.
574 pages, Kindle Edition
First published May 1, 2012
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About the author
Antonin Scalia
32 books115 followersAmerican jurist Antonin Scalia served from 1986 as an associate justice of the Supreme Court of United States.
Antonin Gregory Scalia previously served in the Administrations of Richard Milhous Nixon and Gerald Rudolph Ford, taught law at the universities of Virginia and Chicago, and served on the circuit for District of Columbia. Ronald Wilson Reagan, president, appointed him in 1986. People considered him a core member of the conservative wing; he vigorously advances textualism in statute and originalism in constitutional interpretation.
https://en.wikipedia.org/wiki/Antonin...
Antonin Gregory Scalia previously served in the Administrations of Richard Milhous Nixon and Gerald Rudolph Ford, taught law at the universities of Virginia and Chicago, and served on the circuit for District of Columbia. Ronald Wilson Reagan, president, appointed him in 1986. People considered him a core member of the conservative wing; he vigorously advances textualism in statute and originalism in constitutional interpretation.
https://en.wikipedia.org/wiki/Antonin...
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July 22, 2015Justice Scalia has once again embarked on a defense of textualism, the theory of interpretation that argues one must look back at the original text and stick to the text when deciding a case. There is an enlightening debate between Judge Richard Posner and the book's co-author, Bryan Garner in the pages of The New Republic (see cites below,) which spilled over into several online blogs including the National Review Online.
All of us seek objectivity from the courts. That justices would want to base their decisions on some objective standard is laudable. Yet, we also want some common sense flexibility. Posner believes that Garner and Scalia are being obtuse if not disingenuous. Take the example of a statute that says, “ No person may drive any kind of vehicle in the park.” Now let’s say someone in the park is stricken with a heart attack. None of us would want to prohibit an ambulance from driving into the park, yet that’s a clear violation of the statute and a true textualist would *have* to permit prosecution of the driver, yet even Scalia and Garner refuse to go that far, so the line between true textualism and broader interpretation is variable indeed.
A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.
Garner and Scalia insist that legislative history and debate should not be a source for judges when making decisions, yet Posner shows how Scalia has made exception to this dictum on numerous occasions. This, Posner suggests, hobbles legislatures and predisposes them toward smaller government. Well, duh, isn’t that already the predisposition of conservatives (I hesitate to align small government with conservatism since government has often grown exponentially during the tenure of supposedly and self-anointed conservative presidencies.) Ironically, one might argue that a textualist approach to the ambulance problem cited above would lead to more rather than less regulation since the legislature would be forced to create new regulations defining vehicular exceptions to the original rule. Yet, legislative history showing that the purpose of the legislation was to prohibit ambulances would certainly be on-point.
Context can also not be ignored. The word "draft" depends for its meaning on context. It could refer to curtains blowing in the wind; conscription during wartime, the preliminary sketch of a book; or even a bank note. Scalia and Garner insist that meaning will come from other text in the statute. Nonsense, says Fish. "No, it won’t. Take the sentence, “Let’s avoid the draft.” It could mean “let’s get out of military service” (a fourth meaning of “draft”), or it could mean “let’s go inside and diminish the risk of catching cold,” or it could mean (as spoken by a general manager of a professional sports team) “let’s bypass the unpredictability of the draft (a fifth meaning of draft) and trust in free agency,” or it could mean “let’s not do a draft of the bylaws (a sixth meaning of “draft”) but get right to the finished product.” The text does, as Scalia and Garner say, take it meaning from its purposive context, but the text won’t tell you what that purposive context is."
Scalia, in the meantime, has gone on the offensive. "Scalia denied that he uses legislative history in his decisions: “We are textualists. We are originalists. We are not nuts.” Apparently, Chief Justice Roberts is. The recent decision validating the Affordable Health Care Act (King v Burwell, 2015) Roberts wrote: “In this instance, the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”
Personally, in reading the decisions of Heller and MacDonald, and in listening to the oral arguments, it seemed to me that both sides were looking to original intent and legislative history for their own cherry-picking and from differing time periods, the minority looking to the fear of slave rebellions and hence the need for militias in 1789 while the majority focused on the need for individual armament for blacks to defend themselves against marauding whites after the Civil War. Posner, in his rebuttal, takes Scalia to taks for doing just that: " I said that “when he [Justice Scalia] looks for the original meaning of eighteenth-century constitutional provisions—as he did 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.”
Stanley Fish, in his praise of the book, perversely also noted that the “thesis that textualism is the one mode of legal interpretation that avoids subjectivity and the intrusion into judicial realm of naked political preferences” is wrong. Fish also scolds Scalia, "in NFIB v. Sebelius, Scalia the justice rejects the canon Scalia the author defends — but there can be little doubt that Roberts has canon #38, or something very much like it, in mind when he writes, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.” (I believe he was quoting Justice White in Hooper v California, 1895.)
Posner ends his review with, “Justice Scalia has called himself in print a “faint-hearted originalist.” It seems he means the adjective at least as sincerely as he means the noun.”
I wondered if Scalia was wise to embark on writing this book. It would seem that his theological canons make him a target for some serious textual parsing.
Regretfully, I fear that Michael Dorfman's comments may be closest to the mark, another validation of confirmation bias. "The core claim of Scalia and Garner is that textual originalism is determinate in a way that other interpretive methodologies are not. If that claim were true, one would expect to find that the votes of judges and Justices who describe themselves as textualist do not strongly correlate with their ideological views, while judges and Justices who reject textualism do vote in ideologically predictable ways. Yet in fact, all judges vote in ideologically predictable ways."
Me? I just want fairness, common sense, and to be left alone. But I sure love the debate. Reading the differing points of view has provided this old man with several very entertaining hours of pleasure.
http://www.tnr.com/article/magazine/b...#
Garner's response: http://www.tnr.com/article/politics/1...
http://www.chicagotribune.com/news/ch... and Posner's response: http://www.tnr.com/blog/plank/107549/...
The National Review's response to the Posner review. :http://www.nationalreview.com/bench-m...#
Stanley Fish: http://opinionator.blogs.nytimes.com/...
edited 7/2015 to add King v Burwell and make some editorial corrections
All of us seek objectivity from the courts. That justices would want to base their decisions on some objective standard is laudable. Yet, we also want some common sense flexibility. Posner believes that Garner and Scalia are being obtuse if not disingenuous. Take the example of a statute that says, “ No person may drive any kind of vehicle in the park.” Now let’s say someone in the park is stricken with a heart attack. None of us would want to prohibit an ambulance from driving into the park, yet that’s a clear violation of the statute and a true textualist would *have* to permit prosecution of the driver, yet even Scalia and Garner refuse to go that far, so the line between true textualism and broader interpretation is variable indeed.
A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.
Garner and Scalia insist that legislative history and debate should not be a source for judges when making decisions, yet Posner shows how Scalia has made exception to this dictum on numerous occasions. This, Posner suggests, hobbles legislatures and predisposes them toward smaller government. Well, duh, isn’t that already the predisposition of conservatives (I hesitate to align small government with conservatism since government has often grown exponentially during the tenure of supposedly and self-anointed conservative presidencies.) Ironically, one might argue that a textualist approach to the ambulance problem cited above would lead to more rather than less regulation since the legislature would be forced to create new regulations defining vehicular exceptions to the original rule. Yet, legislative history showing that the purpose of the legislation was to prohibit ambulances would certainly be on-point.
Context can also not be ignored. The word "draft" depends for its meaning on context. It could refer to curtains blowing in the wind; conscription during wartime, the preliminary sketch of a book; or even a bank note. Scalia and Garner insist that meaning will come from other text in the statute. Nonsense, says Fish. "No, it won’t. Take the sentence, “Let’s avoid the draft.” It could mean “let’s get out of military service” (a fourth meaning of “draft”), or it could mean “let’s go inside and diminish the risk of catching cold,” or it could mean (as spoken by a general manager of a professional sports team) “let’s bypass the unpredictability of the draft (a fifth meaning of draft) and trust in free agency,” or it could mean “let’s not do a draft of the bylaws (a sixth meaning of “draft”) but get right to the finished product.” The text does, as Scalia and Garner say, take it meaning from its purposive context, but the text won’t tell you what that purposive context is."
Scalia, in the meantime, has gone on the offensive. "Scalia denied that he uses legislative history in his decisions: “We are textualists. We are originalists. We are not nuts.” Apparently, Chief Justice Roberts is. The recent decision validating the Affordable Health Care Act (King v Burwell, 2015) Roberts wrote: “In this instance, the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”
Personally, in reading the decisions of Heller and MacDonald, and in listening to the oral arguments, it seemed to me that both sides were looking to original intent and legislative history for their own cherry-picking and from differing time periods, the minority looking to the fear of slave rebellions and hence the need for militias in 1789 while the majority focused on the need for individual armament for blacks to defend themselves against marauding whites after the Civil War. Posner, in his rebuttal, takes Scalia to taks for doing just that: " I said that “when he [Justice Scalia] looks for the original meaning of eighteenth-century constitutional provisions—as he did 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.”
Stanley Fish, in his praise of the book, perversely also noted that the “thesis that textualism is the one mode of legal interpretation that avoids subjectivity and the intrusion into judicial realm of naked political preferences” is wrong. Fish also scolds Scalia, "in NFIB v. Sebelius, Scalia the justice rejects the canon Scalia the author defends — but there can be little doubt that Roberts has canon #38, or something very much like it, in mind when he writes, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.” (I believe he was quoting Justice White in Hooper v California, 1895.)
Posner ends his review with, “Justice Scalia has called himself in print a “faint-hearted originalist.” It seems he means the adjective at least as sincerely as he means the noun.”
I wondered if Scalia was wise to embark on writing this book. It would seem that his theological canons make him a target for some serious textual parsing.
Regretfully, I fear that Michael Dorfman's comments may be closest to the mark, another validation of confirmation bias. "The core claim of Scalia and Garner is that textual originalism is determinate in a way that other interpretive methodologies are not. If that claim were true, one would expect to find that the votes of judges and Justices who describe themselves as textualist do not strongly correlate with their ideological views, while judges and Justices who reject textualism do vote in ideologically predictable ways. Yet in fact, all judges vote in ideologically predictable ways."
Me? I just want fairness, common sense, and to be left alone. But I sure love the debate. Reading the differing points of view has provided this old man with several very entertaining hours of pleasure.
http://www.tnr.com/article/magazine/b...#
Garner's response: http://www.tnr.com/article/politics/1...
http://www.chicagotribune.com/news/ch... and Posner's response: http://www.tnr.com/blog/plank/107549/...
The National Review's response to the Posner review. :http://www.nationalreview.com/bench-m...#
Stanley Fish: http://opinionator.blogs.nytimes.com/...
edited 7/2015 to add King v Burwell and make some editorial corrections
August 28, 2022
This book is as close as a 450-page primer on statutory interpretation comes to being a page-turner. The book is shockingly readable and does it’s readers a service by covering each cannon/myth in a bite-sized section with lots of examples. The amount of research that went into finding scholarly opinions or illustrative cases is astounding. Functionally, this book is a good reference for practicing lawyers who need a refresher or non-lawyers who want to understand why legal interpretation is more than just outcome-based politicking.
I personally found persuasive his rebuttal to (rant on?) the usefulness of legislative history as an interpretive tool. The authors provide 8 or 9 reasonable and urgent reasons that legislative history is not a firm basis for interpretation (e.g., the text of the bill is what’s voted on, voting members/the President can not be aware of the statements/reports they are voting on, there may not be a common understanding of broad terms). I don’t think I ever heard those counterpoints in law school (only that legislative history was slightly lower on the persuasiveness hierarchy).
Ultimately, the book provides a solid background on interpretive cannon and a persuasive argument for why they are necessary for confidence in the people’s judges and elected representatives.
I personally found persuasive his rebuttal to (rant on?) the usefulness of legislative history as an interpretive tool. The authors provide 8 or 9 reasonable and urgent reasons that legislative history is not a firm basis for interpretation (e.g., the text of the bill is what’s voted on, voting members/the President can not be aware of the statements/reports they are voting on, there may not be a common understanding of broad terms). I don’t think I ever heard those counterpoints in law school (only that legislative history was slightly lower on the persuasiveness hierarchy).
Ultimately, the book provides a solid background on interpretive cannon and a persuasive argument for why they are necessary for confidence in the people’s judges and elected representatives.
February 8, 2020
This will be extremely useful in my own work, given how central statutory interpretation is to prosecution. Even if one doesn't fully subscribe to textualism, the interpretive canons are still valid in many cases, and often just common sense. This book also has interesting overlaps with Biblical hermeneutics and in particular the questions of typological and prospective reading.
March 16, 2021
I know it sounds dry as dust; but, it is immensely readable. Aside from being a brilliant legal scholar, Scalia was a pretty down-to-earth and funny guy and that part of his persona shines through. Besides, you'll feel quite brilliant yourself if you stay with it (whether you actually are brilliant, and not just a parrot, is another question. At least it was in my case). Scalia discusses certain legal cannons for which Latin supplies a formidable stock of legal terms and phrases. If one went to a Catholic school in the 50s and 60s, as I did, one would have been introduced to Latin early because the Mass was said in Latin and the Nuns believed we should understand what was being said. But nowadays, not so much. But back to my point. When a situation arises when one can show off, one should be prudent. Two cases in point: My neighborhood was having a discussion about the types of animals one can keep on one's property. (Someone wanted to raise chickens). The prevailing argument was chickens are not allowed. But there was some wavering. The covenants limit the number of pets...dogs, cats, etc. that can be housed on a person's property. The would-be chicken owner argued the covenants are silent on chickens. So, naturally I had to pipe up and say that it is a clear question of ejusdem generis, i.e. cats, dogs, hamsters, parakeets are domestic animals and would not include...say, for instance...elephants. Or in this case, chickens. The following day I was able to suggest to a colleague that what he was suggesting was a matter of inclusio unius est exclusio alterius. After which I waited...and smiled. But here's a warning: there is a very fine line between sounding pretty doggone smart...and being perceived as a pompous ass. I may have crossed the Rubicon on that one. So read this book with caution, and practice more self-restraint than I did. (P.S. I wish we could raise chickens.)
January 13, 2023
Would have been better if Garner was left out.
December 8, 2025
One of the best resources for anyone interested in statutory interpretation (it’s more interesting than it sounds).
July 16, 2018
This book is a must for lawyers. The format and style are easily approachable for non-lawyers as well. For those concerned about Supreme Court decisions and justices, this book explains why "conservative" justices are often so-called swing votes on any court. They are not ideologically predisposed to come to ideological conclusions but carry out their true and indeed only legitimate role of applying rules to parse the meaning of contracts, laws and constitutions. There is no alternative that upholds the rule of law. Otherwise a judge does what he or she believes is right ignoring the legislative branch's role or the contracting party's chosen language. This is a long book but if the introduction (a significant, lengthy explanation of Scalia's legal philosophy) is the only thing you read, it may be enough. The rest of the book is a wonderful reference for lawyers.
June 4, 2014
I read this to prepare myself for my master's program in law since I have little academic background in law. Like with nearly everything else that professes to share the 'truth' of anything, this book ought to be taken with a grain of salt. He seems to be cherry picking when to be a "strict textualist". Overall though this will be a great resource in my school career, written perfectly for direct quotes and paraphrasing
July 17, 2017
As a Legislative Drafter, I found this book to be extremely useful. Previously, I had superficial knowledge on canons of interpretation. Also, the concept of originalism as well expounded by Antony Scalia and Bryan A. Garner is now seared into my mind. Like any other academic book, I will read and re-read this book so many times.
March 3, 2016
Good resource if you're interested in Original Meaning interpretation.
June 18, 2020
Objective Summary
Scalia and Garner’s treatise provides canons of construction to use when interpreting legal texts. The authors argue in favor of textualism (and the closely related originalism): “Both your authors are textualists: We look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences. We hope to persuade our readers that this interpretive method is the soundest, most principled one that exists.”
Scalia and Garner believe that textualism is the most objective and reliable interpretative approach. It is the only way to ensure the judiciary fulfills its constitutionally proper role of interpreting law rather than creating law, which is the role of the legislature. There are contrary interpretive approaches, such as consequentialism (deciding what the law should say based on how it will impact the outcome in or parties to a case) or purposivism (deciding what the law should say based on the perceived purpose of the legislation or legislators). They are unreliable and antithetical to representative democracy. Contrary interpretive approaches improperly and unconstitutionally insert judges into the role of legislators. When judges act as de facto legislatures, they silence or override the will of the people. The law in the United States consists of the Constitution and enacted statutes and regulations. It does not consist of some unexpressed “legislative intent,” which is a fiction when applied to a multimember body like Congress whose members may not have read—let alone understood, or agreed with—the statutes that are passed. And it should not consist of what unelected judges fancy at a given moment in history. Scalia and Garner maintain that the law is and should be only what is enacted in writing by Congress. (The authors focus on federal legislation and courts, but the same reasoning applies at the state level.)
So how does a textualist interpret statutes? By giving a fair reading to the words of the text in context. How do you do that? Aye, there’s the rub. Textualists employ numerous canons of constructions to help them give a fair reading to a text and confront the inevitable ambiguities, vagaries, omissions, and errors that arise when humans try to capture concepts in written words. The canons are presumptions and guidelines rather than strict rules. And different canons may point to different conclusions in a given case. Textualist interpretation is an art based on sound reasoning and logic reflected in durable canons. The canons included in this treatise, pulled directly from the Table of Contents, are as follows.
Principles Applicable to All Texts
Fundamental Principles
1. Interpretation Principle. Every application of a text to particular circumstances entails interpretation.
2. Supremacy-of-Text Principle. The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.
3. Principle of Interrelating Canons. No canon of interpretation is absolute. Each may be overcome by the strength of the differing principles that point in other directions.
4. Presumption Against Ineffectiveness. A textually permissible interpretation that furthers rather than obstructs the document’s purpose should be favored.
5. Presumption of Validity. An interpretation that validates outweighs one that invalidates.
Semantic Canons
6. Ordinary-Meaning Canon. Words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.
7. Fixed-Meaning Canon. Words must be given the meaning they had when the text was adopted.
8. Omitted-Case Canon. Nothing is to be added to what the text states or reasonably implies. That is, a matter not covered is to be treated as not covered.
9. General-Terms Canon. General terms are to be given their general meaning.
10. Negative-Implication Canon. The expression of one thing implies the exclusion of others.
11. Mandatory/Permissive Canon. Mandatory words impose a duty; permissive words grant discretion.
12. Conjunctive/Disjunctive Canon. And joins a conjunctive list, or a disjunctive list—but with negatives, plurals, and various specific wordings there are nuances.
13. Subordinating/Superordinating Canon. Subordinating language (signaled by subject to) or superordinating language (signaled by notwithstanding or despite) merely shows which provision prevails in the event of a clash—but does not necessarily denote a clash of provisions.
14. Gender/Number Canon. In the absence of a contrary indication, the masculine includes the feminine (and vice versa) and the singular includes the plural (and vice versa).
15. Presumption of Nonexclusive “Include.” The verb to include introduces examples, not an exhaustive list.
16. Unintelligibility Canon. An unintelligible text is inoperative.
Syntactic Canons
17. Grammar Canon. Words are to be given the meaning that proper grammar and usage would assign them.
18. Last-Antecedent Canon. A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.
19. Series-Qualifier Canon. When there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.
20. Nearest-Reasonable-Referent Canon. When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent.
21. Proviso Canon. A proviso conditions the principal matter that it qualifies—almost always the matter immediately preceding.
22. Scope-of-Subparts Canon. Material within an indented subpart relates only to that subpart; material contained in unindented text relates to all the following or preceding indented subparts.
23. Punctuation Canon. Punctuation is a permissible indicator of meaning.
Contextual Canons
24. Whole-Text Canon. The text must be construed as a whole.
25. Presumption of Consistent Usage. A word or phrase is presumed to bear the same meaning throughout a text; a material variation in terms suggests a variation in meaning.
26. Surplusage Canon. If possible, every word and every provision is to be given effect. None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.
27. Harmonious-Reading Canon. The provisions of a text should be interpreted in a way that renders them compatible, not contradictory.
28. General/Specific Canon. If there is a conflict between a general provision and a specific provision, the specific provision prevails.
29. Irreconcilability Canon. If a text contains truly irreconcilable provisions at the same level of generality, and they have been simultaneously adopted, neither provision should be given effect.
30. Predicate-Act Canon. Authorization of an act also authorizes a necessary predicate act.
31. Associated-Words Canon. Associated words bear on one another's meaning.
32. Ejusdem Generis Canon. Where general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned.
33. Distributive-Phrasing Canon. Distributive phrasing applies each expression to its appropriate referent.
34. Prefatory-Materials Canon. A preamble, purpose clause, or recital is a permissible indicator of meaning.
35. Title-and-Headings Canon. The title and headings are permissible indicators of meaning.
36. Interpretive-Direction Canon. Definition sections and interpretation clauses are to be carefully followed.
37. Absurdity Doctrine. A provision may be either disregarded or judicially corrected as an error (when the correction is textually simple) if failing to do so would result in a disposition that no reasonable person could approve.
Principles Applicable Specifically to Governmental Prescriptions
Expected-Meaning Canons
38. Constitutional-Doubt Canon. A statute should be interpreted in a way that avoids placing its constitutionality in doubt.
39. Related-Statutes Canon. Statutes in pari materia are to be interpreted together, as though they were one law.
40. Reenactment Canon. If the legislature amends or reenacts a provision other than by way of a consolidating statute or restyling project, a significant change in language is presumed to entail a change in meaning.
41. Presumption Against Retroactivity. A statute presumptively has no retroactive application.
42. Pending-Action Canon. When statutory law is altered during the pendency of a lawsuit, the courts at every level must apply the new law unless doing so would violate the presumption against retroactivity.
43. Extraterritoriality Canon. A statute presumptively has no extraterritorial application.
44. Artificial-Person Canon. The word person includes corporations and other entities, but not the sovereign.
Government-Structuring Canons
45. Repealability Canon. The legislature cannot derogate from its own authority or the authority of its successors.
46. Presumption Against Waiver of Sovereign Immunity. A statute does not waive sovereign immunity—and a federal statute does not eliminate state sovereign immunity—unless that disposition is unequivocally clear.
47. Presumption Against Federal Preemption. A federal statute is presumed to supplement rather than displace state law.
Private-Right Canons
48. Penalty/Illegality Canon. A statute that penalizes an act makes it unlawful.
49. Rule of Lenity. Ambiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant s favor.
50. Mens Rea Canon. A statute creating a criminal offense whose elements are similar to those of a common-law crime will be presumed to require a culpable state of mind (mens rea) in its commission. All statutory offenses imposing substantial punishment will be presumed to require at least awareness of committing the act.
51. Presumption Against Implied Right of Action. A statute’s mere prohibition of a certain act does not imply creation of a private right of action for its violation. The creation of such a right must be either express or clearly implied from the text of the statute
Stabilizing Canons
52. Presumption Against Change in Common Law. A statute will be construed to alter the common law only when that disposition is clear.
53. Canon of Imputed Common-Law Meaning. A statute that uses a common-law term, without defining it, adopts its common-law meaning.
54. Prior-Construction Canon. If a statute uses words or phrases that have already received authoritative construction by the jurisdiction's court of last resort, or even uniform construction by inferior courts or a responsible administrative agency, they are to be understood according to that construction.
55. Presumption Against Implied Repeal. Repeals by implication are disfavored—"very much disfavored." But a provision that flatly contradicts an earlier-enacted provision repeals it.
56. Repeal-of-Repealer Canon. The repeal or expiration of a repealing statute does not reinstate the original statute.
57. Desuetude Canon. A statute is not repealed by nonuse or desuetude.
Thirteen Falsities Exposed
58. The false notion that the spirit of a statute should prevail over its letter.
59. The false notion that the quest in statutory interpretation is to do justice.
60. The false notion that when a situation is not quite covered by a statute, the court should reconstruct what the legislature would have done had it confronted the issue.
61. The half-truth that consequences of a decision provide the key to sound interpretation.
62. The false notion that words should be strictly construed.
63. The false notion that tax exemptions—or any other exemptions for that matter—should be strictly construed.
64. The false notion that remedial statutes should be liberally construed.
65. The false notion that a statute cannot oust courts of jurisdiction unless it does so expressly.
66. The false notion that committee reports and floor speeches are worthwhile aids in statutory construction.
67. The false notion that the purpose of interpretation is to discover intent.
68. The false notion that the plain language of a statute is the "best evidence" of legislative intent.
69. The false notion that lawyers and judges, not being historians, are unqualified to do the historical research that originalism requires.
70. The false notion that the Living Constitution is an exception to the rule that legal texts must be given the meaning they bore when adopted.
Subjective Thoughts
This is a legal treatise on textual interpretation. It is reference material that I read from start to finish like a novel. But it isn’t a novel. It is dense material that throws around grammatical terms like: syndeton, asyndeton, polysyndeton, synecdoche, prepositive and postpositive modifiers, anaphoric and cataphoric pronoun. I got one: yeesh. The book was a slog at times, and I had a hard time finishing. Like an owner’s manual for a kitchen appliance, it is nice to have when you need it, but it isn’t fun to read. It is a useful compilation of authority, and Scalia and Garner know what they’re talking about.
As usual, Scalia persuaded me with his arguments. My takeaways from his main arguments were these:
1. Textualism is the only game in town when it comes to objectivity in interpreting the written word. Everyone else is just making shit up.
2. The country would be better off all around if the judiciary returned to textualism as the means of interpretation, which it did until about the 1960s.
3. Legislative intent is a meaningless term and should be ignored in interpreting laws. The law is what is written, not what some legislators intended.
4. The role of judges is to say what the law is, not what the law should be.
5. A textualist interpretation of the Constitution has easy answers for today’s most controversial issues: there is no right to abortion, gay marriage, assisted suicide, or sodomy. There is a right to own firearms. The state can execute people for certain crimes without violating the Eighth Amendment.
6. The Constitution is not “living.” It means what it says, not what people think it should say. If you want to change a law, pass a bill. Don’t pretend that the Constitution always said what you wish it would say today.
This not to say textualism is easy or the canons will give clear answers. To the contrary, it can get muddy. There are enough canons listed in this treatise for genuine (or clever) litigants and judges to marshal powerful arguments on both sides of disputes. But, like representative democracy itself, it is the best alternative yet devised.
Finally, as I often say because it so often applies, a smaller government envisioned by libertarians would reduce the total number of laws and thereby reduce the inherent complexity that arises in passing and applying laws. With less room for error, fewer errors can be made. And the people can go on about their business unencumbered by trying to interpret laws pertaining to tax, ERISA, or discrimination that shouldn’t exist in the first place.
Revealing Quotes
“The Supreme Court of the United States decides about 80 cases a year, a tiny fraction of the nation’s litigation. . . . [T]he Justices resolve almost half of their cases unanimously, and many of the others by lopsided votes.”
“It used to be said that judges do not ‘make’ law—they simply apply it. In the 20th century, the legal realists convinced everyone that judges do indeed make law. . . . It was true, that is, that judges did not really ‘find’ the common law but invented it over time. Yet this notion has been stretched into a belief that judges ‘make’ law through judicial interpretation of democratically enacted statutes.”
“The practice of injecting one’s own thoughts into texts has long been given free rein in some schools of scriptural exegesis—so long, in fact, that scholars have given the practice its own disreputable name: eisegesis. The antonym of exegesis, the term eisegesis denotes the insertion of the reader’s own ideas into the text, making the reader a full collaborator with the original author and enabling the introduction of all sorts of new material. For eisegetes, the possibilities are endless.”
“Liberation from text is attractive to judges as well. It increases their ability to do what they think is good.”
“[W]e seek a return to the oldest and most commonsensical interpretive principle: In their full context, words mean what they conveyed to reasonable people at the time they were written—with the understanding that general terms may embrace later technological innovations. . . . The exclusive reliance on text when interpreting text is known as textualism. . . . Textualism, in its purest form, begins and ends with what the text says and fairly implies.”
“In whatever age or culture, human intelligence follows certain principles of expression that are as universal as principles of logic. For example, intelligent expression does not contradict itself or set forth two propositions that are entirely redundant. . . . Properly regarded, [the canons set forth in the book] are not ‘rules’ of interpretation in any strict sense but presumptions about what an intelligently produced text conveys.”
“In the English-speaking nations, the earliest statute directed to statutory interpretation made it a punishable offense for counsel to argue anything other than original understanding. Enacted by the Scottish Parliament in 1427, the act was entitled ‘That nane interpreit the Kingis statutes wrangeouslie.’”
“Blackstone (1723-1780), the great 18th-century exponent of English law, was a thoroughgoing originalist.”
“[O]riginalism remains the normal, natural approach to understanding anything that has been said or written in the past.”
“Originalism is the only approach to text that is compatible with democracy. When government-adopted texts are given a new meaning, the law is changed; and changing written law, like adopting written law in the first place, is the function of the first two branches of government—elected legislators and (in the case of authorized prescriptions by the executive branch) elected executive officials and their delegates.”
“[T]he prohibition of cruel and unusual punishments in the federal Constitution was not thought to prevent categorical imposition of the death penalty for conviction of certain crimes. Well into the 20th century, conviction of certain crimes (for example, murder of a police officer) resulted in an automatic death penalty.”
“Originalism prevents this sort of nine-person (or indeed five-person) constitutional revision.”
“The conclusive argument in favor of originalism is a simple one: It is the only objective standard of interpretation even competing for acceptance. Nonoriginalism is not an interpretative theory—it is nothing more than a repudiation of originalism, leaving open the question: How does a judge determine when and how the meaning of a text has changed? To this question the nonoriginalists have no answer—or rather no answer that comes even close to being an objective test.”
“The choice is this: Give text the meaning it bore when it was adopted, or else let every judge decide for himself what it should mean today.”
Quotes continued in comments.
Scalia and Garner’s treatise provides canons of construction to use when interpreting legal texts. The authors argue in favor of textualism (and the closely related originalism): “Both your authors are textualists: We look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences. We hope to persuade our readers that this interpretive method is the soundest, most principled one that exists.”
Scalia and Garner believe that textualism is the most objective and reliable interpretative approach. It is the only way to ensure the judiciary fulfills its constitutionally proper role of interpreting law rather than creating law, which is the role of the legislature. There are contrary interpretive approaches, such as consequentialism (deciding what the law should say based on how it will impact the outcome in or parties to a case) or purposivism (deciding what the law should say based on the perceived purpose of the legislation or legislators). They are unreliable and antithetical to representative democracy. Contrary interpretive approaches improperly and unconstitutionally insert judges into the role of legislators. When judges act as de facto legislatures, they silence or override the will of the people. The law in the United States consists of the Constitution and enacted statutes and regulations. It does not consist of some unexpressed “legislative intent,” which is a fiction when applied to a multimember body like Congress whose members may not have read—let alone understood, or agreed with—the statutes that are passed. And it should not consist of what unelected judges fancy at a given moment in history. Scalia and Garner maintain that the law is and should be only what is enacted in writing by Congress. (The authors focus on federal legislation and courts, but the same reasoning applies at the state level.)
So how does a textualist interpret statutes? By giving a fair reading to the words of the text in context. How do you do that? Aye, there’s the rub. Textualists employ numerous canons of constructions to help them give a fair reading to a text and confront the inevitable ambiguities, vagaries, omissions, and errors that arise when humans try to capture concepts in written words. The canons are presumptions and guidelines rather than strict rules. And different canons may point to different conclusions in a given case. Textualist interpretation is an art based on sound reasoning and logic reflected in durable canons. The canons included in this treatise, pulled directly from the Table of Contents, are as follows.
Principles Applicable to All Texts
Fundamental Principles
1. Interpretation Principle. Every application of a text to particular circumstances entails interpretation.
2. Supremacy-of-Text Principle. The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.
3. Principle of Interrelating Canons. No canon of interpretation is absolute. Each may be overcome by the strength of the differing principles that point in other directions.
4. Presumption Against Ineffectiveness. A textually permissible interpretation that furthers rather than obstructs the document’s purpose should be favored.
5. Presumption of Validity. An interpretation that validates outweighs one that invalidates.
Semantic Canons
6. Ordinary-Meaning Canon. Words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.
7. Fixed-Meaning Canon. Words must be given the meaning they had when the text was adopted.
8. Omitted-Case Canon. Nothing is to be added to what the text states or reasonably implies. That is, a matter not covered is to be treated as not covered.
9. General-Terms Canon. General terms are to be given their general meaning.
10. Negative-Implication Canon. The expression of one thing implies the exclusion of others.
11. Mandatory/Permissive Canon. Mandatory words impose a duty; permissive words grant discretion.
12. Conjunctive/Disjunctive Canon. And joins a conjunctive list, or a disjunctive list—but with negatives, plurals, and various specific wordings there are nuances.
13. Subordinating/Superordinating Canon. Subordinating language (signaled by subject to) or superordinating language (signaled by notwithstanding or despite) merely shows which provision prevails in the event of a clash—but does not necessarily denote a clash of provisions.
14. Gender/Number Canon. In the absence of a contrary indication, the masculine includes the feminine (and vice versa) and the singular includes the plural (and vice versa).
15. Presumption of Nonexclusive “Include.” The verb to include introduces examples, not an exhaustive list.
16. Unintelligibility Canon. An unintelligible text is inoperative.
Syntactic Canons
17. Grammar Canon. Words are to be given the meaning that proper grammar and usage would assign them.
18. Last-Antecedent Canon. A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.
19. Series-Qualifier Canon. When there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.
20. Nearest-Reasonable-Referent Canon. When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent.
21. Proviso Canon. A proviso conditions the principal matter that it qualifies—almost always the matter immediately preceding.
22. Scope-of-Subparts Canon. Material within an indented subpart relates only to that subpart; material contained in unindented text relates to all the following or preceding indented subparts.
23. Punctuation Canon. Punctuation is a permissible indicator of meaning.
Contextual Canons
24. Whole-Text Canon. The text must be construed as a whole.
25. Presumption of Consistent Usage. A word or phrase is presumed to bear the same meaning throughout a text; a material variation in terms suggests a variation in meaning.
26. Surplusage Canon. If possible, every word and every provision is to be given effect. None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.
27. Harmonious-Reading Canon. The provisions of a text should be interpreted in a way that renders them compatible, not contradictory.
28. General/Specific Canon. If there is a conflict between a general provision and a specific provision, the specific provision prevails.
29. Irreconcilability Canon. If a text contains truly irreconcilable provisions at the same level of generality, and they have been simultaneously adopted, neither provision should be given effect.
30. Predicate-Act Canon. Authorization of an act also authorizes a necessary predicate act.
31. Associated-Words Canon. Associated words bear on one another's meaning.
32. Ejusdem Generis Canon. Where general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned.
33. Distributive-Phrasing Canon. Distributive phrasing applies each expression to its appropriate referent.
34. Prefatory-Materials Canon. A preamble, purpose clause, or recital is a permissible indicator of meaning.
35. Title-and-Headings Canon. The title and headings are permissible indicators of meaning.
36. Interpretive-Direction Canon. Definition sections and interpretation clauses are to be carefully followed.
37. Absurdity Doctrine. A provision may be either disregarded or judicially corrected as an error (when the correction is textually simple) if failing to do so would result in a disposition that no reasonable person could approve.
Principles Applicable Specifically to Governmental Prescriptions
Expected-Meaning Canons
38. Constitutional-Doubt Canon. A statute should be interpreted in a way that avoids placing its constitutionality in doubt.
39. Related-Statutes Canon. Statutes in pari materia are to be interpreted together, as though they were one law.
40. Reenactment Canon. If the legislature amends or reenacts a provision other than by way of a consolidating statute or restyling project, a significant change in language is presumed to entail a change in meaning.
41. Presumption Against Retroactivity. A statute presumptively has no retroactive application.
42. Pending-Action Canon. When statutory law is altered during the pendency of a lawsuit, the courts at every level must apply the new law unless doing so would violate the presumption against retroactivity.
43. Extraterritoriality Canon. A statute presumptively has no extraterritorial application.
44. Artificial-Person Canon. The word person includes corporations and other entities, but not the sovereign.
Government-Structuring Canons
45. Repealability Canon. The legislature cannot derogate from its own authority or the authority of its successors.
46. Presumption Against Waiver of Sovereign Immunity. A statute does not waive sovereign immunity—and a federal statute does not eliminate state sovereign immunity—unless that disposition is unequivocally clear.
47. Presumption Against Federal Preemption. A federal statute is presumed to supplement rather than displace state law.
Private-Right Canons
48. Penalty/Illegality Canon. A statute that penalizes an act makes it unlawful.
49. Rule of Lenity. Ambiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant s favor.
50. Mens Rea Canon. A statute creating a criminal offense whose elements are similar to those of a common-law crime will be presumed to require a culpable state of mind (mens rea) in its commission. All statutory offenses imposing substantial punishment will be presumed to require at least awareness of committing the act.
51. Presumption Against Implied Right of Action. A statute’s mere prohibition of a certain act does not imply creation of a private right of action for its violation. The creation of such a right must be either express or clearly implied from the text of the statute
Stabilizing Canons
52. Presumption Against Change in Common Law. A statute will be construed to alter the common law only when that disposition is clear.
53. Canon of Imputed Common-Law Meaning. A statute that uses a common-law term, without defining it, adopts its common-law meaning.
54. Prior-Construction Canon. If a statute uses words or phrases that have already received authoritative construction by the jurisdiction's court of last resort, or even uniform construction by inferior courts or a responsible administrative agency, they are to be understood according to that construction.
55. Presumption Against Implied Repeal. Repeals by implication are disfavored—"very much disfavored." But a provision that flatly contradicts an earlier-enacted provision repeals it.
56. Repeal-of-Repealer Canon. The repeal or expiration of a repealing statute does not reinstate the original statute.
57. Desuetude Canon. A statute is not repealed by nonuse or desuetude.
Thirteen Falsities Exposed
58. The false notion that the spirit of a statute should prevail over its letter.
59. The false notion that the quest in statutory interpretation is to do justice.
60. The false notion that when a situation is not quite covered by a statute, the court should reconstruct what the legislature would have done had it confronted the issue.
61. The half-truth that consequences of a decision provide the key to sound interpretation.
62. The false notion that words should be strictly construed.
63. The false notion that tax exemptions—or any other exemptions for that matter—should be strictly construed.
64. The false notion that remedial statutes should be liberally construed.
65. The false notion that a statute cannot oust courts of jurisdiction unless it does so expressly.
66. The false notion that committee reports and floor speeches are worthwhile aids in statutory construction.
67. The false notion that the purpose of interpretation is to discover intent.
68. The false notion that the plain language of a statute is the "best evidence" of legislative intent.
69. The false notion that lawyers and judges, not being historians, are unqualified to do the historical research that originalism requires.
70. The false notion that the Living Constitution is an exception to the rule that legal texts must be given the meaning they bore when adopted.
Subjective Thoughts
This is a legal treatise on textual interpretation. It is reference material that I read from start to finish like a novel. But it isn’t a novel. It is dense material that throws around grammatical terms like: syndeton, asyndeton, polysyndeton, synecdoche, prepositive and postpositive modifiers, anaphoric and cataphoric pronoun. I got one: yeesh. The book was a slog at times, and I had a hard time finishing. Like an owner’s manual for a kitchen appliance, it is nice to have when you need it, but it isn’t fun to read. It is a useful compilation of authority, and Scalia and Garner know what they’re talking about.
As usual, Scalia persuaded me with his arguments. My takeaways from his main arguments were these:
1. Textualism is the only game in town when it comes to objectivity in interpreting the written word. Everyone else is just making shit up.
2. The country would be better off all around if the judiciary returned to textualism as the means of interpretation, which it did until about the 1960s.
3. Legislative intent is a meaningless term and should be ignored in interpreting laws. The law is what is written, not what some legislators intended.
4. The role of judges is to say what the law is, not what the law should be.
5. A textualist interpretation of the Constitution has easy answers for today’s most controversial issues: there is no right to abortion, gay marriage, assisted suicide, or sodomy. There is a right to own firearms. The state can execute people for certain crimes without violating the Eighth Amendment.
6. The Constitution is not “living.” It means what it says, not what people think it should say. If you want to change a law, pass a bill. Don’t pretend that the Constitution always said what you wish it would say today.
This not to say textualism is easy or the canons will give clear answers. To the contrary, it can get muddy. There are enough canons listed in this treatise for genuine (or clever) litigants and judges to marshal powerful arguments on both sides of disputes. But, like representative democracy itself, it is the best alternative yet devised.
Finally, as I often say because it so often applies, a smaller government envisioned by libertarians would reduce the total number of laws and thereby reduce the inherent complexity that arises in passing and applying laws. With less room for error, fewer errors can be made. And the people can go on about their business unencumbered by trying to interpret laws pertaining to tax, ERISA, or discrimination that shouldn’t exist in the first place.
Revealing Quotes
“The Supreme Court of the United States decides about 80 cases a year, a tiny fraction of the nation’s litigation. . . . [T]he Justices resolve almost half of their cases unanimously, and many of the others by lopsided votes.”
“It used to be said that judges do not ‘make’ law—they simply apply it. In the 20th century, the legal realists convinced everyone that judges do indeed make law. . . . It was true, that is, that judges did not really ‘find’ the common law but invented it over time. Yet this notion has been stretched into a belief that judges ‘make’ law through judicial interpretation of democratically enacted statutes.”
“The practice of injecting one’s own thoughts into texts has long been given free rein in some schools of scriptural exegesis—so long, in fact, that scholars have given the practice its own disreputable name: eisegesis. The antonym of exegesis, the term eisegesis denotes the insertion of the reader’s own ideas into the text, making the reader a full collaborator with the original author and enabling the introduction of all sorts of new material. For eisegetes, the possibilities are endless.”
“Liberation from text is attractive to judges as well. It increases their ability to do what they think is good.”
“[W]e seek a return to the oldest and most commonsensical interpretive principle: In their full context, words mean what they conveyed to reasonable people at the time they were written—with the understanding that general terms may embrace later technological innovations. . . . The exclusive reliance on text when interpreting text is known as textualism. . . . Textualism, in its purest form, begins and ends with what the text says and fairly implies.”
“In whatever age or culture, human intelligence follows certain principles of expression that are as universal as principles of logic. For example, intelligent expression does not contradict itself or set forth two propositions that are entirely redundant. . . . Properly regarded, [the canons set forth in the book] are not ‘rules’ of interpretation in any strict sense but presumptions about what an intelligently produced text conveys.”
“In the English-speaking nations, the earliest statute directed to statutory interpretation made it a punishable offense for counsel to argue anything other than original understanding. Enacted by the Scottish Parliament in 1427, the act was entitled ‘That nane interpreit the Kingis statutes wrangeouslie.’”
“Blackstone (1723-1780), the great 18th-century exponent of English law, was a thoroughgoing originalist.”
“[O]riginalism remains the normal, natural approach to understanding anything that has been said or written in the past.”
“Originalism is the only approach to text that is compatible with democracy. When government-adopted texts are given a new meaning, the law is changed; and changing written law, like adopting written law in the first place, is the function of the first two branches of government—elected legislators and (in the case of authorized prescriptions by the executive branch) elected executive officials and their delegates.”
“[T]he prohibition of cruel and unusual punishments in the federal Constitution was not thought to prevent categorical imposition of the death penalty for conviction of certain crimes. Well into the 20th century, conviction of certain crimes (for example, murder of a police officer) resulted in an automatic death penalty.”
“Originalism prevents this sort of nine-person (or indeed five-person) constitutional revision.”
“The conclusive argument in favor of originalism is a simple one: It is the only objective standard of interpretation even competing for acceptance. Nonoriginalism is not an interpretative theory—it is nothing more than a repudiation of originalism, leaving open the question: How does a judge determine when and how the meaning of a text has changed? To this question the nonoriginalists have no answer—or rather no answer that comes even close to being an objective test.”
“The choice is this: Give text the meaning it bore when it was adopted, or else let every judge decide for himself what it should mean today.”
Quotes continued in comments.
September 23, 2025
I had told myself at some point in law school that I would read this book, along with several other legal literary works, prior to graduating, but never got around to it. After a conversation with my Senior Defense Counsel about this book, and others, I moved this book, and the other legal literary works on my reading list to the top of the list. And I am glad that I did so.
While Justice Scalia and Bryan A. Garner were unable to convince me of converting to Textualism, and I remain a staunch Originalist, this is still a very well put together legal treatise. With that said, I am still unsure if I am an Original Intent Originalist, or an Original Public Meaning Originalist (although I'm not entirely sure the distinction makes all that much of a difference, particularly in the modern political context where both Textualists and Originalists find themselves teaming up against Living Constitutionalists, who couldn't be further opposed to both Textualists, and Originalists, even if they tried--but I digress).
The book compiles most if not all of the judicial canons of statutory construction. It is not only a great read, but will act as an even greater reference book for the canons of statutory construction. I highly recommend that this book be read by all those residing in a country that descends from the Anglo-American legal tradition; more specifically, I recommend this book be read by all American citizens; more specifically than that, I strongly urge that this book be read by all American jurists; and I most strongly recommend that this book be read by all American law students. In fact, the book should really be required reading for law students, mandated by the ABA for institutional accreditation. It's that good, and that important.
Lastly, I do believe that every single one of the fundamental principles, canons of statutory interpretation, as well as the truths of the thirteen falsities exposed within the book, should be applied by American judges, at the federal, state, and local levels, whenever applicable. However, like I mentioned above, I was not convinced of Textualism. The book, and many Textualists will tell you that Textualism is the only judicial interpretation method that has a chance to get you to the correct interpretive answer everytime, however I reject this notion. Sometimes, Textualism over academizes the interpretation of a statute, even when applying some of the canons of construction. I found myself during the reading of 1-2 of the canons of statutory interpretation thinking, "no one thinks like this when they are writing. And therefore, attempting to decipher the meaning of a law in this manner may very well actually lead to a meaning that was not enacted." I do not see an issue with the Courts applying Originalism, and in fact, I view it as the most sound judicial interpretation method. We want our judges to figure out what the original either intent, or public meaning of the law was when it was enacted, because laws are not enacted in a vacuum, like Textualism seems to purport to believe. There is context behind why each law was enacted, when it was enacted, with the language that it was enacted with. And that context informs what the law actually means. And despite what this book, and Textualists will say, we can deduce from other documents (such as legislative history) what that original intent or public meaning was. That doesn't mean that we take all legislative history as gospel, but it is a valid tool in the toolbox for judges in the interpretation of legal texts.
While Justice Scalia and Bryan A. Garner were unable to convince me of converting to Textualism, and I remain a staunch Originalist, this is still a very well put together legal treatise. With that said, I am still unsure if I am an Original Intent Originalist, or an Original Public Meaning Originalist (although I'm not entirely sure the distinction makes all that much of a difference, particularly in the modern political context where both Textualists and Originalists find themselves teaming up against Living Constitutionalists, who couldn't be further opposed to both Textualists, and Originalists, even if they tried--but I digress).
The book compiles most if not all of the judicial canons of statutory construction. It is not only a great read, but will act as an even greater reference book for the canons of statutory construction. I highly recommend that this book be read by all those residing in a country that descends from the Anglo-American legal tradition; more specifically, I recommend this book be read by all American citizens; more specifically than that, I strongly urge that this book be read by all American jurists; and I most strongly recommend that this book be read by all American law students. In fact, the book should really be required reading for law students, mandated by the ABA for institutional accreditation. It's that good, and that important.
Lastly, I do believe that every single one of the fundamental principles, canons of statutory interpretation, as well as the truths of the thirteen falsities exposed within the book, should be applied by American judges, at the federal, state, and local levels, whenever applicable. However, like I mentioned above, I was not convinced of Textualism. The book, and many Textualists will tell you that Textualism is the only judicial interpretation method that has a chance to get you to the correct interpretive answer everytime, however I reject this notion. Sometimes, Textualism over academizes the interpretation of a statute, even when applying some of the canons of construction. I found myself during the reading of 1-2 of the canons of statutory interpretation thinking, "no one thinks like this when they are writing. And therefore, attempting to decipher the meaning of a law in this manner may very well actually lead to a meaning that was not enacted." I do not see an issue with the Courts applying Originalism, and in fact, I view it as the most sound judicial interpretation method. We want our judges to figure out what the original either intent, or public meaning of the law was when it was enacted, because laws are not enacted in a vacuum, like Textualism seems to purport to believe. There is context behind why each law was enacted, when it was enacted, with the language that it was enacted with. And that context informs what the law actually means. And despite what this book, and Textualists will say, we can deduce from other documents (such as legislative history) what that original intent or public meaning was. That doesn't mean that we take all legislative history as gospel, but it is a valid tool in the toolbox for judges in the interpretation of legal texts.
January 2, 2015
How to be Textualist
“Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.” –Chief Justice John Marshall
“‘Cause you know sometimes words have two meanings.” –Led Zeppelin
Words are slippery things. The same word can be used to designate almost an infinite number of meanings. I am running in the race. I am running for public office. I am running a lemonade stand. Sometimes, social context can completely change phrases from having a connotation of strong condemnation to reverberations of high praise. This is true, for example, when Queen Anne (probably apocryphally) described Christopher Wren’s architecture in the 18th Century as “awful, artificial, and amusing.” Today, these labels are slapped on works of art that are terrible, fake, and immature. But in those days, Queen Anne was lauding the work for inspiring awe, constituting great art, and pleasing aesthetically.
In America’s system of positive law, courts are meant to be legal—not political—institutions. Achieving this role crucially depends on judges fairly and accurately applying the text of the law rather than some perceived vision of the good or a more just society. These latter tasks fall to the democratically elected legislators. But how can judges reliably achieve this Herculean task when the English language presents so many difficulties of interpretation? In this book, Justice Scalia and Bryan Garner present a very excellent explanation.
The answer to this question lies in the use of “canons of interpretation,” which this book thoroughly analyzes. These are rules which textualist judges ought to use in order to curtail (not necessarily eliminate) judicial discretion and apply a fair reading of a legal text. Some of these rules apply to all legal texts. For example, the ordinary-meaning canon establishes that legal terms ought to be given their everyday meaning, the meaning which would be understood by a citizen who has to abide by them. In this endeavor, the use of a respected English dictionary is helpful. The surplusage canon establishes that, if possible, every word of a legal text ought to be given its meaning. Others of these widely applying canons are more technical. The ejusdem generis canon, for example, specifies that when there is a list of particular terms followed by a general phrase such as “and any other item” or “and any other person,” the general phrase includes only those items and people similar to those mentioned in the list of particular terms. Any other interpretation renders this list of particular items meaningless. The general-specific canon, furthermore, specifies that when a general provision conflicts with a specific one, the specific provision ought to be given more weight.
Some of these principles apply only to governmental prescriptions. For example, the constitutional doubt canon specifies that legislation should be read in a way that avoids putting the legislation’s constitutionality in doubt. The rule of lenity, furthermore, states that ambiguity in a criminal law statute should be interpreted in favor of the defendant since it is the role of the legislature—not the courts—to decide how punishment ought to be distributed.
This book also does an excellent job at explaining whence these canons derive their authority. One could appeal to tradition and custom and argue that they derive legitimacy from the fact that they have been in use for quite some time. Fair enough, but this always seemed to be tenuous ground to me. It seems similar to those who argue that the Designated Hitter ought to be done away with since it is contrary to the way baseball has always been played. The problem with these arguments is that they can be used to support opposing theories as well. The Designated Hitter has now been around for more than 30 years. By the same argument proposed by the anti-Designated Hitter crowd, the pro-Designated Hitter argument can be made with equal force. Similarly, by this argument, if judges stray from the canons long enough, they will lose their legitimacy.
This book seems to have better arguments as to the source of these canons’ legitimacy. First, Scalia and Garner argue that these canons attempt to capture how a reasonable citizen, subject to these laws, would use the language in which they are written and understand how they apply. This argument goes back in some ways to the classic story of Caligula the Roman emperor who placed the laws on the top of a tall pole where no one could see them. Law’s legitimacy depends on its being understood by those who are subject to it. The canons, though not perfectly, probably capture the meaning of the English language better than any other alternative.
Second, the book makes numerous mentions of how these rules are, in large part, understood in the law-drafting community. Central to the question of a law’s interpretation is the legislature’s intent in passing the law. It should be stressed, however, that this intent must be wholly derived from the text and not imputed by the judge’s preferences as it was in the Holy Trinity case. If intent is to be determined entirely from the text, there must be a set of known rules in which a statute’s drafters can convey its intent by means of language. The canons serve as these rules. When drafters stick to these well-known canons, the courts do not have to resort to the risky business of imputing intent, relying on the expressed intent of one legislator over the entire legislature, or looking to legislative history.
“Reading Law” is not primarily a philosophical defense of textualism. Rather, it fills an important role in specifying how to be a textualist. And in that endeavor, I think it clearly succeeds.
“Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.” –Chief Justice John Marshall
“‘Cause you know sometimes words have two meanings.” –Led Zeppelin
Words are slippery things. The same word can be used to designate almost an infinite number of meanings. I am running in the race. I am running for public office. I am running a lemonade stand. Sometimes, social context can completely change phrases from having a connotation of strong condemnation to reverberations of high praise. This is true, for example, when Queen Anne (probably apocryphally) described Christopher Wren’s architecture in the 18th Century as “awful, artificial, and amusing.” Today, these labels are slapped on works of art that are terrible, fake, and immature. But in those days, Queen Anne was lauding the work for inspiring awe, constituting great art, and pleasing aesthetically.
In America’s system of positive law, courts are meant to be legal—not political—institutions. Achieving this role crucially depends on judges fairly and accurately applying the text of the law rather than some perceived vision of the good or a more just society. These latter tasks fall to the democratically elected legislators. But how can judges reliably achieve this Herculean task when the English language presents so many difficulties of interpretation? In this book, Justice Scalia and Bryan Garner present a very excellent explanation.
The answer to this question lies in the use of “canons of interpretation,” which this book thoroughly analyzes. These are rules which textualist judges ought to use in order to curtail (not necessarily eliminate) judicial discretion and apply a fair reading of a legal text. Some of these rules apply to all legal texts. For example, the ordinary-meaning canon establishes that legal terms ought to be given their everyday meaning, the meaning which would be understood by a citizen who has to abide by them. In this endeavor, the use of a respected English dictionary is helpful. The surplusage canon establishes that, if possible, every word of a legal text ought to be given its meaning. Others of these widely applying canons are more technical. The ejusdem generis canon, for example, specifies that when there is a list of particular terms followed by a general phrase such as “and any other item” or “and any other person,” the general phrase includes only those items and people similar to those mentioned in the list of particular terms. Any other interpretation renders this list of particular items meaningless. The general-specific canon, furthermore, specifies that when a general provision conflicts with a specific one, the specific provision ought to be given more weight.
Some of these principles apply only to governmental prescriptions. For example, the constitutional doubt canon specifies that legislation should be read in a way that avoids putting the legislation’s constitutionality in doubt. The rule of lenity, furthermore, states that ambiguity in a criminal law statute should be interpreted in favor of the defendant since it is the role of the legislature—not the courts—to decide how punishment ought to be distributed.
This book also does an excellent job at explaining whence these canons derive their authority. One could appeal to tradition and custom and argue that they derive legitimacy from the fact that they have been in use for quite some time. Fair enough, but this always seemed to be tenuous ground to me. It seems similar to those who argue that the Designated Hitter ought to be done away with since it is contrary to the way baseball has always been played. The problem with these arguments is that they can be used to support opposing theories as well. The Designated Hitter has now been around for more than 30 years. By the same argument proposed by the anti-Designated Hitter crowd, the pro-Designated Hitter argument can be made with equal force. Similarly, by this argument, if judges stray from the canons long enough, they will lose their legitimacy.
This book seems to have better arguments as to the source of these canons’ legitimacy. First, Scalia and Garner argue that these canons attempt to capture how a reasonable citizen, subject to these laws, would use the language in which they are written and understand how they apply. This argument goes back in some ways to the classic story of Caligula the Roman emperor who placed the laws on the top of a tall pole where no one could see them. Law’s legitimacy depends on its being understood by those who are subject to it. The canons, though not perfectly, probably capture the meaning of the English language better than any other alternative.
Second, the book makes numerous mentions of how these rules are, in large part, understood in the law-drafting community. Central to the question of a law’s interpretation is the legislature’s intent in passing the law. It should be stressed, however, that this intent must be wholly derived from the text and not imputed by the judge’s preferences as it was in the Holy Trinity case. If intent is to be determined entirely from the text, there must be a set of known rules in which a statute’s drafters can convey its intent by means of language. The canons serve as these rules. When drafters stick to these well-known canons, the courts do not have to resort to the risky business of imputing intent, relying on the expressed intent of one legislator over the entire legislature, or looking to legislative history.
“Reading Law” is not primarily a philosophical defense of textualism. Rather, it fills an important role in specifying how to be a textualist. And in that endeavor, I think it clearly succeeds.
November 1, 2016
This book is fascinating, especially for a law junkie like me. I now understand what Scalia was trying to do. The problem isn't with the Supreme Court; the problem is that the legislature isn't writing good laws and isn't writing needed laws to cover our changing society. It isn't the job of the Supreme Court or any court to legislate. What happens, though, when different parts of the country have different opinions about what is right? How can minority rights be protected? Thank goodness we have a constitution. It will be interesting to see how the Supreme Court votes on the transsexual bathroom issue. Again, a minority whose rights need protecting versus a moral view by different groups. (Or is it a moral view, a religious one, a status quo one?)
This was recommended by Justice Elena Kagan on a CSPAN show.
This was recommended by Justice Elena Kagan on a CSPAN show.
February 18, 2022
I was not aware that they could not follow or poll public opinion. I do aligned with Scalia’s views about the text and the way to read it. I had to set the book down for a week but was able to pick it up and finish today. I love to watch his YouTube discussions which when watching heard them mention this book which I’ve enjoyed. Of course it was Not as feisty as watching him online but still well presented.
I do love the pages and pages of references and even dictionary….as everyone who reads my profile can see how I believe Words matter.
Anyone heard that he was murdered?
I do love the pages and pages of references and even dictionary….as everyone who reads my profile can see how I believe Words matter.
Anyone heard that he was murdered?
January 6, 2019
This is well-written and very readable, but also reveals how choosing which interpretive rule to apply in a particular case gives a judge like Scalia the ability to obtain the outcome he wants while still appearing to an objective originalist. See, for example, Richard Posner's review in The New Republic for more detail (https://newrepublic.com/article/10644...).
June 18, 2019
As a woman of a limited budget I use my local library. This book you have to purchase to keep on hand. It is over 500 pages so I have checked it out several times to review.
I am not a lawyer but Scalias book has clarified my pre conceived ideas on how the law is. I needed to be more proactive in my divorce and it has helped me get a better divorce settlement.
Forget the fly by night Dr. Phil lawyers. Get a lawyer who is not a drama queen and milks the client.
I am not a lawyer but Scalias book has clarified my pre conceived ideas on how the law is. I needed to be more proactive in my divorce and it has helped me get a better divorce settlement.
Forget the fly by night Dr. Phil lawyers. Get a lawyer who is not a drama queen and milks the client.
May 6, 2022
3.5 stats!
Parts of the book we're a little too technical for my liking, so i skipped them, but it was interesting to see how someone so consequential approached cases that appeared before him.
Really disliked the end, where he discussed 'fighting myths' where he appeared ultra-conservative and i kind of felt like his personal opinion bled in (while he's supposed to be always completely natural, as part of his stance on legal interpretation).
Parts of the book we're a little too technical for my liking, so i skipped them, but it was interesting to see how someone so consequential approached cases that appeared before him.
Really disliked the end, where he discussed 'fighting myths' where he appeared ultra-conservative and i kind of felt like his personal opinion bled in (while he's supposed to be always completely natural, as part of his stance on legal interpretation).
April 17, 2018
Scalia and a lexicographer on scalia'a manner of reading law. This is a worthwhile perspective to read into. At the moment I am struggling to advocate for a living constitution, but I guess that just goes to show how convincing this book was.
I recommend this for anyone with an interesting in scalia's impact on America's supreme court and legal interpretation.
I recommend this for anyone with an interesting in scalia's impact on America's supreme court and legal interpretation.
June 6, 2020
This is a very helpful book. I used it extensively in legislation during my second year of law school. Justice Scalia was a phenomenal writer, and his pith shines through these pages.
If you are a member of the legal profession, this book is a worthwhile investment. For a contrasting view of statutory interpretation, see “Judging Statutes” by Judge Robert Katzmann.
If you are a member of the legal profession, this book is a worthwhile investment. For a contrasting view of statutory interpretation, see “Judging Statutes” by Judge Robert Katzmann.
January 18, 2021
Read this Treatise Cover to Cover, absolutely amazing. Imagine reading every page of a treatise and not ever becoming bored. It’s very linguistic-based and focuses on the modes of interpretation, promotes textualism with vigor and logic, and it soundly offers instruction on how to a provide consistent results when reading statutes (by describing past cases and offering examples).
September 8, 2019
This book gives you a behind-the-scenes view into the world that is the American legal system and its interpretation of the reading of its laws. Written by the late, great Justice Scalia and Brian Garner. A must read for any law student.
May 20, 2023
This book is at its strongest when it explains basic statutory interpretation. It is at its weakest when Scalia is sneering at people who think that legislative intent matters while he sneaks legislative intent in through the backdoor at several points.
February 13, 2024
No matter your political beliefs or stance on constitutional law, this is the most authoritative book on statutory construction out there. Justice Scalia and Mr Garner use humor and their unparalleled knowledge of law to make the subject matter anyone interested can understand.
July 31, 2017
Great introduction. Read this book before law school, and it provided a framework that I was able to use during law school to not only understand the Constitution, but also interpret law generally.
July 11, 2020
Useful, I suppose, but oh so boring.
September 24, 2021
A very interesting and persuasive read for a non lawyer interested in the law.
July 1, 2022
I would give this more stars if I could. Garner is a worthy coauthor, but I hear his tone more than I would like. This is the only drawback.
June 19, 2023
Very informative. Sometimes writes about such tiny details, that I didn't expect to be discussed as they seem to obvious. A lot of examples. Writing style was quite catchy as for this type of book.
January 22, 2024
love my canons of interp
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