This debate is at about round 4 now.  Scalia/Garner argue for textual originalism and Posner calls their adherence to it a bunch of waffling (and no, that is not a quote).

Round 1: Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West), June 19, 2012

Round 2: Richard A. Posner, The Incoherence of Antonin Scalia, The New Republic, August 24, 2012

Round 3: Justice Scalia’s response, see Reuters report here, Sep. 18, 2012

Round 4: Judge Posner’s responses, Reuters here and a letter here, Sep. 20, 2012

Not exactly MilJus, but a lot of fun to read.

6 Responses to “Textualism Debate: Scalia/Garner vs. Posner”

  1. Sgt Dad says:

    Very much fun, indeed.  My respect for Posner is now much diminished.  Anything by Garner is worth having in one’s law library, BTW.

  2. Sgt Dad says:

     I was struck by Posner’s condescension to Scalia on the Heller case.  “Most professional historians?”  So?  History by consensus?  Posner speaking in non sequiturs yet again.   
    Second, Posner is wrong: most professional legal historians, maybe — but not historians overall.  Posner is an excellent example of how inbred and tendentious legal scholarship has become.  Only someone whose sole knowledge of American history is derived from law review articles would conclude the right to keep and bear arms was a “collective” right confined to the militia.  Get outside law review world and the scholarship looks vastly different: to keep & bear arms was held by all in America to be a fundamental personal right.
    Posner is thinking with his feelings and adding a dollop of condescension.  Not very persuasive.

  3. Mike "No Man" Navarre says:

    Speaking of ideologically driven, I don’t think Posner’s point was whether Scalia was right or wrong in Heller, though he concludes based on his thesis about constitutional construction that Scalia could not have had sufficient evidence of unconstitutionality to overturn the statute.  Posner’s point was that Scalia uses textualism as a convenient tag line more than an actual rule of interpretation.  And that is hard to argue with.  Scalia’s definition of “legislative history” reminds me of Clinton’s (Bill) attempt to define the meaning of “is.”

  4. Some DC says:

    “Get outside law review world and the scholarship looks vastly different: to keep & bear arms was held by all in America to be a fundamental personal right.”  So look at  legislative history as that term is defined by Garner?

  5. Socrates says:

    I did not detect a tone of condescension in Posner’s argument.  I read it as a rather straightforward, and rather convincing, attack on Scalia’s judicial approach.  Frankly, its close to the tone – and perhaps kinder and gentler – than Scalia’s dissents.  The Heller decision was just one small example among dozens that Posner provides, and I discount the “motivated thinking” that the gun-topic or other social issues inevitably trigger.  I thought Posner’s best example was his simplist: (a) a restaurant sign states: “no animals allowed”; (b) human beings are animals; (c) therefore, no human beings allowed in the restaurant.  The absurdity of textualism thus exposed with such elegance.  I respect Scalia and his intelligence – and I don’t really think his judicial approach is “incoherent” – it probably works 80% of the time.  But I think Posner wins the point that it frequently can’t work. 

  6. stewie says:

    So, we had 200 years of judrisprduence that the 2nd Amdt didn’t apply to individuals until just the last few years, but anyone who reads it the same way that, well, every court from the Supremes on down did for the vast majority of our history is somehow not in the real world?

    Did slaves have a right to keep and bear arms? Did women? We know the vote was often limited to just land-owning males, did non-land owning males have a right to keep and bear arms? The problem with original intent is whose intent are we looking at?

    Because the Constitution was a compromise political document folded together among two distinct factions with distinct concerns and issues. It wasn’t as if they all sat down and said, yep, we fully agree again, write it down.