Now in Legal Rebels:
Posted Sep 18, 2012 11:42 am CDT
Updated: Judge Richard Posner’s controversial review of a book co-authored by Justice Antonin Scalia is getting more push back, this time from the justice himself.
Scalia says Posner was dead wrong when he asserted that Scalia was “doing legislative history” by considering the original meaning of the Second Amendment in District of Columbia v. Heller. Posner said Scalia deviated from his own textualism philosophy in the case; Scalia begs to differ. Reuters has the story.
“To say that I used legislative history is simply, to put it bluntly, a lie,” Scalia told Reuters.
The book by Scalia and Bryan Garner, the editor-in-chief of Black’s Law Dictionary, is Reading Law: The Interpretation of Legal Texts. Posner alleged in the review published by the New Republic that the authors misrepresent case rationales and show a “pattern of equivocation.”
In Posner’s view, the 57 “canons of construction” outlined by the authors “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.”
Scalia said Posner was able to make his assertion about legislative history because he was writing for a nonlegal publication. “You can get away with it in The New Republic, I suppose, but not to a legal audience,” he told Reuters. “Any legal audience knows what legislative history is. It’s the history of the enactment of the bill. It’s the floor speeches. It’s the prior drafts of committees. That’s what legislative history is. It isn’t the history of the times.”
Posner later responded to a request for comment by Reuters. “Responding to a Supreme Court justice who calls one a liar requires special care in expression,” Posner said in an email accompanying his written response, Reuters reports.
According to Posner, Scalia looked to English and American sources to find a common law right of armed self-defense that was codified in the Second Amendment. In his view, he wrote in the response, that’s legislative history.
Scalia may not consider his historical inquiry to be “legislative history” because he defines the term very narrowly, Posner says. “His coauthor, Bryan Garner, does not define it so,” Posner writes. “Here is the definition of the term In Black’s Law Dictionary (9th ed. 2009), of which Garner is the editor: ‘The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates.’ The ‘background and events leading to the enactment’ of the Second Amendment are the focus of the Heller opinion.”
ABAJournal.com: “Scalia Co-Author Sees ‘Tendentious Hostility’ in Review by Posner, Who Denies Any Personal Animosity”
ABAJournal.com: “Textual Originalism and the Great Sandwich Debate: Posner Reviews Scalia”
ABAJournal.com: “Scalia Discusses Views on Textualism and the Process of Co-Writing His New Book”
ABAJournal.com: “Posner Fires Back in Spat over Scalia’s Book and the Definition of Legislative History”
Updated on Sept. 21 to include Posner’s new response and additional information from the Scalia interview.