Frankly, I was disappointed in the depth of insight and reflection offered in this book. This little volume is essentially a recapitulation of a narrow and shallow view of Constitutional Law and exegesis of the US Constitution that lacks a unifying logic or point of view that underlies it. And, I found him disingenuous in that he adopts a literalist position while knowing full well that no such position is possible in reading documents more complex and abstract than simple assembly instructions. His responses to the criticisms of Dworkin, Glendon, Tribe and Wood were frequently glib and self-indulgent, even self-congratulatory. Contrast this work with Justice Breyer's Active Liberty.

My favorite part of the book is when Scalia criticizes those who bash textualism for being formalistic. "Of course, it's formalistic! Law is formalistic!," he claims.

Beyond that, the book is more or less dull precisely because Scalia did not provide any satisfying answer to any of the non-originalist criticisms.
One of the core criticisms raised against Scalia is that originalist interpretation can be, too, and often is, a subjective view of an individual judge. It's just a matter of how you, as a judge, support your decision and originalist judges tend to stick by their textual interpretation as a way of doing that. But how, one might ask, do you prove that the text is saying what you believe it is saying? Some say we should rely on legislative or framers' intent. But that doesn't solve the problem either, because there has to be an interpretation of the intent, and there you see another layer of subjectivity involved.

I hope someday Scalia, or any other originalist for that matter, can clearly answer the criticism so that we all can move on to the next stage. But this book is not doing that.

This is an excellent book that provides valuable insight into understanding the modern controversy and problem of construing the American Constitution. Unique in that Justice Scalia graciously provides his theory first. He is then rebutted in different ways by university scholars in very varied manner. Each rebuttal is quite unique and interesting in its own right. Fascinating in that Scalia also provides responses to each rebuttal at the end of the book.

The format is very educational and enlightening and it's remarkable that a sitting Justice of the Supreme Court would provide such candid and unapologetic theory of interpretation, knowing that his views would face challenging if not scathing attack by some very important scholars on the topic.

The only thing that would have made this book more interesting is a discussion, or forward describing just how this process of argument, response and rebuttal was organized. Just how did these authors get together to create such an honest discussion of what are, in some cases, very polar views on the issue of interpretation. That's why I gave it four stars. But I loved it.

I would caution that some of the writing is technical both legally and philosophically. Legally in that some discussion referring to the doctrine of incorporation seem to be assumed understood. Philosophically in that Dworkin's discussion of "meaning" and "intention" could be daunting though I think he does a beautiful job of simplifying and clarifying what are often considered some of the most complex philosophical issues of the 20th Century.

Very well done. Very appreciated work. I was fascinated and thoroughly enjoyed the format of argument, counterargument and response.

First of all, let me make it clear that I think Scalia is a brilliant Justice. I have a very high level of respect for him intellectually. However, I think that he is too conservative, as is this book. I still think people should read it, because I advocate hearing all sides of an argument, but I thoroughley disagree with Scalia's opinions.

Be that as it may, everyone should sill read this insightful and interesting book, if for no other reason than the debate that takes place at the end of the book.

I think the largest challenge facing Scalia was turning his simple philosophy into an entire book.

When interpreting the constitution we should look at its original meaning.

There it is in 11 words. Scalia manages to expound on his theory a little bit by differentiating it from strict textualism and reinforcing his views here and there. Scalia allows several scholars to give their replies followed by Scalia's rebuttals. This back-and-forth provides an engaging read and expands the simple premise into a full-length, comprehensive read. All in all I enjoyed this book.

I feel compelled to warn potential readers that from time to time this book will sink into the worst of academia. That pseudo-intellectual, acting smart for the sake of sounding smart mentality that plagues universities across the country. These lapses are usually brief and do not greatly detract from what is otherwise a great book on an important debate currently occuring within the highest court in America.

I also recommend you read Active Liberty by Justice Breyer. I have nothing against Tribe, Dworkin or the other respondents in this book, but Breyer takes the discussion out of originalism and into his own philosophy.

I actually picked this up at the end of my second year of law school and I found Scalia's insight and opinions to be original and thought provoking. I feel that so much time is spent teaching law students how to analyze and interpret case law, without often directing our attention to how judges deal with the vast field of statutory interpretation. Very easy and quick read, hope you enjoy it as much as I did.

This book was not exactly what I expected; it was better. It contains an essay by Justice Scalia about the judicial role in deciding statutory and constitutional questions. His essay is followed by comments by other individuals which, in turn, is followed by Justice Scalia's response. The most fascinating part of the entire book was the recognition by the writers that judges have taken it upon themselves to legislate and decide what government policy "ought to be" in rendering judicial decisions. Some of the writers seem to think this is acceptable and expected. To an attorney who has watched courts reach intellectually dishonest decisions in cases where there is potential economic or political impact (for example, one appellate court went so far as to render an unpublished opinion in one case -- apparently to conceal its dishonesty in letting a state divert millions of dollars from a state retirement plan -- then followed up a few months later with a published opinion by the same judges with a precisely opposite holding on an important legal question decided in the first case), the concerns expressed by Justice Scalia were more than theoretical. While our legislators may not be the sharpest knives in the drawer, at least voters can remove them from office or persuade them to change their minds. There is no such opportunity with unelected judges who not only can manipulate facts and law in their rulings, but can issue decisions that never see the light of day and thus escape public scrutiny. Both liberals and conservatives have plenty to fear from judges who believe that they are a law unto themsleves.

Justice Antonin Scalia may be the most dynamic and melodramatic personality on the United States Supreme Court. His opinions burst with bombast. Oddly, Scalia has written very little about the law even though he served as a law professor before launching a career as a government attorney and judge. He has penned only a handful of law review articles. The articles are slightly more illuminating on his theory of jurisprudence, textualism, than is this thin book, "A Matter of Interpretation."

"A Matter of Interpretation" is filled up with a round table dialogue that Scalia graciously initiated to invite notable liberals to disagree with textualism.

In the brief paragraphs that Scalia allocates to himself, he sets out his principles of textualism, which is a combination of Latin parsing and historical analysis. In short, Scalia looks for a constitutional meaning in the actual words of the constitution, and if he cannot find a meaning in the set text, he embarks on an historical investigation of whether the rule or right existed in English common law at the time of the writing of the U.S. Constitution.

Scalia's textualism, therefore, is a good deal more involved than mere glancing at words written in the late 18th century. In fact, Scalia protests that he is not a "strict constructionist," not a justice who merely looks blindly at James Madison's handiwork. Scalia claims that he does not read the Constitution strictly, but rather he reads the Constitution reasonably.

This will no doubt come as a shock to a generation of law professors, law students, and attorneys, who have maintained that Scalia is a rigid strict constructionist. This revelation may also undermine Scalia's reputation as a writer of court opinions and dissents that are always consistently and impressively logical.

It may also come as a shock that Scalia, the titan of tradition, partly bases his textualist theory on the ideas of Justice Oliver Wendell Holmes, the man who insisted that law changes with the times, or reflects "the felt necessities of the time."

The weakness in Scalia's historical origins method is that more importance is placed on English common law than revolutionary American experience. A reason perhaps that Scalia is a staunch defender of free speech, long a principle of English law, and lacks sympathy for search and seizure defendants, persons caught up in the Fourth Amendment right, a right inspired by the searching of Boston homes by British troops during the Revolutionary War.

Scalia's textualism, as set out in this book, is a good deal more flexible than many of his disciples or opponents would give him credit for. Scalia tends to apply this "historical "orgins" method most often in areas such as punitive damages, an area of law which has scarcely changed in centuries. However, in cases where the issue implicates modern rights, such as abortion, Scalia has departed from textualism completely for rationales ranging from stare decisis and reliance to a more or less nihilistic rejection of substantive due process.

Nevertheless, "A Matter of Interpretation" places Scalia in the pantheon of legal scholars, such as Holmes and Judge Richard A. Posner, who have bravely put forward their own theories of jurisprudence. And in the end, this theory, rather than his bombastic rhetoric and conservative prosyletizing, will probably be his enduring legacy.

[Hansen Alexander is an attorney in New York City. His most recent book is the comic novel, "The Death of Chauvinism."]

Justice Antonin Scalia may be the most dynamic and melodramatic personality on the United States Supreme Court. His opinions burst with bombast. Oddly, Scalia has written very little about the law even though he served as a law professor before launching a career as a government attorney and judge. He has penned only a handful of law review articles. The articles are slightly more illuminating on his theory of jurisprudence, textualism, than is this thin book, "A Matter of Interpretation."

"A Matter of Interpretation" is filled up with a round table dialogue that Scalia graciously initiated to invite notable liberals to disagree with textualism.

In the brief paragraphs that Scalia allocates to himself, he sets out his principles of textualism, which is a combination of Latin parsing and historical analysis. In short, Scalia looks for a constitutional meaning in the actual words of the constitution, and if he cannot find a meaning in the set text, he embarks on an historical investigation of whether the rule or right existed in English common law at the time of the writing of the U.S. Constitution.

Scalia's textualism, therefore, is a good deal more involved than mere glancing at words written in the late 18th century. In fact, Scalia protests that he is not a "strict constructionist," not a justice who merely looks blindly at James Madison's handiwork. Scalia claims that he does not read the Constitution strictly, but rather he reads the Constitution reasonably.

This will no doubt come as a shock to a generation of law professors, law students, and attorneys, who have maintained that Scalia is a rigid strict constructionist. This revelation may also undermine Scalia's reputation as a writer of court opinions and dissents that are always consistently and impressively logical.

It may also come as a shock that Scalia, the titan of tradition, partly bases his textualist theory on the ideas of Justice Oliver Wendell Holmes, the man who insisted that law changes with the times, or reflects "the felt necessities of the time."

The weakness in Scalia's historical origins method is that more importance is placed on English common law than revolutionary American experience. A reason perhaps that Scalia is a staunch defender of free speech, long a principle of English law, and lacks sympathy for search and seizure defendants, persons caught up in the Fourth Amendment right, a right inspired by the searching of Boston homes by British troops during the Revolutionary War.

Scalia's textualism, as set out in this book, is a good deal more flexible than many of his disciples or opponents would give him credit for. Scalia tends to apply this "historical "orgins" method most often in areas such as punitive damages, an area of law which has scarcely changed in centuries. However, in cases where the issue implicates modern rights, such as abortion, Scalia has departed from textualism completely for rationales ranging from stare decisis and reliance to a more or less nihilistic rejection of substantive due process.

Nevertheless, "A Matter of Interpretation" places Scalia in the pantheon of legal scholars, such as Holmes and Judge Richard A. Posner, who have bravely put forward their own theories of jurisprudence. And in the end, this theory, rather than his bombastic rhetoric and conservative prosyletizing, will probably be his enduring legacy.

[Hansen Alexander is an attorney in New York City. His most recent book is the novel, "From West Point to Watergate."]

Justice Antonin Scalia may be the most dynamic and melodramatic personality on the United States Supreme Court. His opinions burst with bombast. Oddly, Scalia has written very little about the law even though he served as a law professor before launching a career as a government attorney and judge. He has penned only a handful of law review articles. The articles are slightly more illuminating on his theory of jurisprudence, textualism, than is this thin book, "A Matter of Interpretation."

"A Matter of Interpretation" is filled up with a round table dialogue that Scalia graciously initiated to invite notable liberals to disagree with textualism. In the brief paragraphs that Scalia allocates to himself, he sets out his principles of textualism, which is a combination of Latin parsing and historical analysis. In short, Scalia looks for a constitutional meaning in the actual words of the constitution, and if he cannot find a meaning in the set text, he embarks on an historical investigation of whether the rule or right existed in English common law at the time of the writing of the U.S. Constitution.

Scalia's textualism, therefore, is a good deal more involved than mere glancing at words written in the late 18th century. In fact, Scalia protests that he is not an originalist, not a justice who merely looks blindly at James Madison's handiwork.

The weakness in this method, of course, is that more importance is placed on English common law than revolutionary American experience. A reason perhaps that Scalia is a staunch defender of free speech, long a principle of English law, and lacks sympathy for search and seizure defendants, persons caught up in the Fourth Amendment right, a right inspired by the searching of Boston homes by British troops during the Revolutionary War.

Scalia's textualism, as set out in this book, is a good deal more flexible than many of his disciples or opponents would give him credit for. Scalia tends to strictly apply this "historical "orgins" method in areas such as punitive damages, an area of law which has scarcely changed in centuries. However, in cases where the issue implicates modern rights, such as abortion, Scalia has departed from textualism completely for rationales ranging from stare decisis and reliance to a more or less nihilistic rejection of substantive due process.

Nevertheless, "A Matter of Interpretation" places Scalia in the pantheon of legal scholars who have bravely put forward their own theories of jurisprudence. And in the end, this theory, rather than his bombastic rhetoric and conservative prosyletizing, will probably be his enduring legacy.

I think that it is good to read widely and get divergent perspectives. Thus, Christians and Jews should read the Quran and Muslims should read the Torah and the New Testament. Conservatives should read the Nation or the New Republic and visit the DailyKos website and liberals should read the Weekly Standard or National Review and visit RealClearPolitics. The same perspective applies with Breyer's book. Regardless of your perspective, you should read this brief and easily understandable statement of judicial philosophy from a sitting Supreme Court justice. (And, it would also be good to read the counterpoint from Justice Breyer for the same reasons.)

I find this book to be a more interesting and powerful presentation than the recent book by Justice Breyer. In Breyer's book we read just his perspective and much of it is a response to this book by Scalia. In Scalia's book we are given Scalia's approach to judging and then we are given critical responses to that approach by several different authors, not all judges themselves. It is clear that Scalia likes the clash of argument and finds great benefit in that clash.

This book is brief and extremely well written so that even someone untrained in law can still easily follow the arguments and counterarguments. Anyone interested in our Supreme Court would find this book (and Breyer's) to be extremely useful and enlightening.

For myself, I found that reading both books left me believing that while both Justices approach the world in different ways, we are in good hands. Given the incredibly politicization of the Supreme Court, I found these books to be reassuring of the intelligence, character, and skill of these two Justices.

Even after trying to put to one side whatever opinion one has of Justice Scalia as a judge - something that, for example, the WSJ reviewer plainly couldn't manage, rating or reviewing this book poses (at least) two difficulties:

- the first is that, regardless of the merits - see below - of Justice Scalia's text, he has nonetheless had the decency (or hubris) to seek and publish critical reviews from Ronald Dworkin and Laurence Tribe, notwithstanding that both could be expected to (and do) reject Scalia's assertions. This, in itself, redeems the book to some degree - while many, if not all, Scalia fans may skip these sections, it has to be accepted that he has provided a forum for meaningful discussion of his asserted judicial approach.

- the second and less equivocal point is that the text itself is most use as an exercise in legal pathology, on at least two levels. First, and as Tribe and Dworkin demonstrate, Scalia's originalism is intellectually incoherent and anything but the value-free transparent methodology that he claims it to be. Second, the prominence of Scalia as a Federalist Society icon and, according to President Bush, a model member of the Supreme Court demonstrates the clear conviction that dubious judicial method is irrelevant provided that one agrees with the ideology espoused. This is not to say that Scalia is invariably ideologically motivated - see, for example, his dissent in -Hamdi- but that he is often influenced by ideology yet denies it.

In brief, it's worth buying for the critique and that's about it.

Great read. Scalia exposes the deceptive means by which activist judges often cloak their misdeeds, relying upon supposed rules of construction or plumbing the legislative record in a feigned effort to discern the "intent" of the legislature, when in reality the courts are often using these interpretive tools to "sanctify" judicial mischief, that is to say, conceal their true purpose of reaching their preferred result. At times providing historical examples, he leaves the activists naked and embarrassed. Come take a peak.

Enjoyed the clear writing of Scalia and his honest approach to statutory interpretation. Book is organized as a series of essays by experts in a variety of disciplines. They respond to Scalia's opening articulation of proper interpretive philosophy. A couple of the responding essays are not clearly written and require one to wade through them. Overall, however, this is a wonderful examination of the traditional theory of constitutional interpretation that has fallen into the minority over the last fifty years.

In this lively debate between conervative "originalist" Supreme Court Justice Antonin Scalia and several other scholars who generally take a less frozen-in-time approach to interpreting the Constitution, Scalia comes across as the liveliest and most entertaining participant. But for my money, Scalia simply cannot answer Professor Dworkin's critique that the founders and ratifiers of the Constitution--18th Century Renaissance Men one and all--could not possibly have intended that the broad principles they laid down should be forever interpreted only as they themselves would have done at the close of the 18th century. Instead, it is far more reasonable to infer that the intent of the founders would have been for subsequent generations to apply the broad principles they established in the historical and cultural context of the present.

This is a very straightforward look at the Federal constitution, that does not overwhelm you with legalese but gives you just enough to understand the thinking behind that important Federal document. The examples and illustrations are practical - you can use and relate to them.

There is a great deal to be said for textualism. However, the reality of law-making has been, and is likely to continue to be, that law-makers compromise. The compromises are often reflected in ambiguity or obscurantism that is intentional. Note the key word, "often." So when it can be used, textualism is a good thing.

And one can argue (as I often do) that what we need is a return to a strict interpretation of the constitution. But, of course, that is neither a panacea nor a clear command. The founding fathers were themselves of diverse views as to how things ought to proceed. Consequently, there was compromise (do you suppose politics had been invented, way back then?). The predictable result is that all the research in the world will not lead to a single, unambiguous outcome for all matters.

Imagine the uproar if the SCt decides to go back to a strict interpretation of the Interstate Commerce Clause. The Drug Enforcement Administration will instantly be out of business because there is no plausible link between illicit drugs and interstate commerce. Or intrastate commerce, for that matter. But would Scalia vote to put the DEA out of business? He didn't last term, even though Thomas did.

And that leads to the major hidden flaw in this book. The reader is invited to assume Scalia has and will vote as he writes. He doesn't unless it fits with his own personal philosophy. The man has the intellectual honesty of a jackal, which is to say none whatsoever. My remark is, of course, based on having read most, but not all his opinions, and having a rather decent background in legal & constitutional scholarship.

Don't construe my low opinion for Scalia with a high opinion for the Warren court. Douglas was as intellectually dishonest as Scalia, and maybe a bit trickier. No, my preference is for judicial conservativism. John Paul Stevens is the purist of the last 50 years, perhaps longer. I have never read an opinion of his in which I could honestly say that logic and precedent could not reasonably lead to his conclusion. I may construe some of the precedents differently, but JPS has never in my reading made any outlandish interpretations of precedent. And, without exception, if you accept his interpretation, the logic of the law leads to his conclusion. That, Diogenes, is an honest man.

This book presents the readers with a clear and persuasive view on the foundations and principles that guide one of the greatest legal minds of America. At a time when "judicial activism" is said to be a problem in today's judiciary, Scalia's thoughts on constitutional law display the meaning and method of faithfully interpreting the Constitution and not legislating from the bench. He makes it clear, in an American democracy of checks and balances which separates the legislative from the judicial branch, that it is the job of a judge not to impose his or her personal ideologies and beliefs into interpretations of constitutional law thereby risk shaping and gradually transforming a law into what it is not supposed to be but to consider and utilize the original meaning of a law in any interpretation therefore mainintaing the primary and original function and purpose of that law.

Though a favorite to conservatives, Scalia's intellect and wisdom command respect from people on both sides of the political spectrum. His devotion to faithfully interpreting the law and leaving out any personal bias or prejudice has led him to siding with what have sometimes been considered liberal Supreme Court decisions. For example, in the 1989 Texas v. Johnson decision which ruled that flag burning was protected under the First Amendment rights of free speech, Scalia sided with the majority. Though he still holds the opinion that flag burning is a right protected by the Constitution, Scalia has often expressed his discomfort of having had to vote for the majority. He said that though he would have liked to put the defendent, Johnson, in jail, because of what the First Amendment promises, regardless of his personal opinions and ideologies, he had to side with the majority establishing the right to burn a flag. This is a perfect example of Scalia's interpreting the Constitution faithfully and strictly without allowing personal bias and views to distort an interpretation of the law.

This book is a must-read for scholars and students of the American jurisprudence as well as for those who seek to learn more about a leading voice of the most powerful court in the nation.

A no nonsense text, he got across his philosphy and ideas.
Without ponding it into your skull. A very skillful and articulate justice. This was on my reading list for law school.

I loved the format of the book! Scalia presents his judicial interpretative process, and honestly admits hypocrisy when he occasionally votes ideology rather than using his system. Then, rather than providing a half-hearted attack on his ideological opponents, he invites them to respond to his thesis, each with their own chapter!

You may not agree with Scalia, but you can't doubt his moral courage based on his invitation for criticism in his own book.

I also appreciated the chapter on the structure of Germany's Constitution to help us understand why principle, rather than statue, plays such a big role in American judicial interpretative processes.

Everyone that cares about the Supreme Court should read this book. I have yet to find a better book to learn the motivations and processes utilized by each ideological camp. After reading this book, my ability to understand the logic of the court, for both rulings and the opinions, has been greatly enhanced.

While unintended, Scalia also helped cement my personal belief that a blend of original meaning (aka textualism) and abstract principalism, and not Scalia's textualist approach alone, is by far the optimal method for judicial interpretation based on our Constitution.

I loved the format of the book! Scalia presents his judicial interpretative process, and honestly admits hypocrisy when he occasionally votes ideology rather than using his system. Then, rather than providing a half-hearted attack on his ideological opponents, he invites them to respond to his thesis, each with their own chapter!

You may not agree with Scalia, but you can't doubt his moral courage based on his invitation for criticism in his own book.

I also appreciated the chapter on the structure of Germany's Constitution to help us understand why principle, rather than statue, plays such a big role in American judicial interpretative processes.

Everyone that cares about the Supreme Court should read this book. I have yet to find a better book to learn the motivations and processes utilized by each ideological camp. After reading this book, my ability to understand the logic of the court, for both rulings and the opinions, has been greatly enhanced.

While unintended, Scalia also helped cement my personal belief that abstract principalism, and not Scalia's textualist approach, is by far the optimal method for judicial interpretation based on our Constitution. Not just because it is consistent with our founding father's philosophy, but also because of our country's laws that have often times contradicted the principles of the constitution and our slow progression towards fulfilling those ideals through legislation or the courage of the court to eventually strike down laws counter to the principles plainly laid-out within our beloved Constitution.

I'd like to mention, first of all, what this book it not. It is not for the casual observer of the American judicial system. Justice Scalia gives a probing examination of various methods used in Constitutional and judicial interpretation. If the reader is not consumed with learning law, or delineating the intent of the Constitution, this book will probably be a major disappointment.

On the other hand, if you have a solid foundation of knowledge on the judiciary and the U.S. Constitution, you will enjoy this book and will learn a great deal of what Justice Scalia has to offer. Scalia offers up a 50 page paper on the various methods of judicial interpretation, each methods strengths and weaknesses, and the how and why of whether or not each method is viable.

Scalia's paper is then cross-examined by Ronald Dworkin, Mary Ann Glendon, Amy Gutmann, Lawrence Tribe and Gordon Wood. Scalia then offers up his rebuttal and I believe, strengthens his theories of judicial interpretation. I am not going to go into my own how's and why's, as I am a fan of Scalia's and would rather allow the reader to reach their own conclusions.

Whether you like this book, or hate it, one thing is for certain, you will come away with a much better knowledge of the U.S. judicial system, how it reaches some of its conclusions, and what the consequences of continuing with current methods of judicial interpretation will be on our country.

Monty Rainey
www.juntosociety.com

I'd like to mention, first of all, what this book it not. It is not for the casual observer of the American judicial system. Justice Scalia gives a probing examination of various methods used in Constitutional and judicial interpretation. If the reader is not consumed with learning law, or delineating the intent of the Constitution, this book will probably be a major disappointment.

On the other hand, if you have a solid foundation of knowledge on the judiciary and the U.S. Constitution, you will enjoy this book and will learn a great deal of what Justice Scalia has to offer. Scalia offers up a 50 page paper on the various methods of judicial interpretation, each methods strengths and weaknesses, and the how and why of whether or not each method is viable.

Scalia's paper is then cross-examined by Ronald Dworkin, Mary Ann Glendon, Amy Gutmann, Lawrence Tribe and Gordon Wood. Scalia then offers up his rebuttal and I believe, strengthens his theories of judicial interpretation. I am not going to go into my own how's and why's, as I am a fan of Scalia's and would rather allow the reader to reach their own conclusions.

Whether you like this book, or hate it, one thing is for certain, you will come away with a much better knowledge of the U.S. judicial system, how it reaches some of its conclusions, and what the consequences of continuing with current methods of judicial interpretation will be on our country.

Antonin Scalia might be best described as a conservative American. Conservatism often means not taking the "far-out-there" approach to life.

Although his section of the book is rather short, it is a bit difficult to follow for those of us who are not lawyers. Nevertheless, it is an excellent view into his thinking process. It details the reasons for not siding with contemporary liberal thinking, believing that the U.S. Constitution should be interpreted literally (in most cases).

I read the book a few pages at a time, absorbed what I read, and read more the next day. Frequently, during the responses to his writings by other prominent lawyers, I found myself going back and re-reading parts of his writings again. To complete the book and understand it I probably read the entire book several times - back and forth between the writers.

Whatever your political leanings, it is an insight into why one Supreme Court Justice votes the way he does.

I wish all the Justices would write a similar book so we could understand their viewpoints.

Adroitly Justice Scalia shows how judicial interpretation follows no known set of principles or constraints. Without a useful set of rules, the judicial branch has usurped the powers delegated to the legislative and executive branches. Instead, the judicial branch continues its common law tradition of making law for the King. Unfortunately, this practice pre-dates democratic government.

The term "interpretation" now includes the raw law making and law setting-aside power that has ripped the fundamental freedom of self governance. Have you ever wondered, when you've read a recent Supreme Court ruling about the latest, newly-unconstitutional law, that the attendant ruling makes no reference to any specific part of the Constitution? Instead, Justices refer to their previously-declared law on that or even another subject. In effect, courts have "interpreted" new law, then used that interpretation or some arbitrary re-interpretation to make whatever decision they think is best. This has led to the bold ignoring of the written law in favor of what judges (and their attendant activists) believe "should" be the law.

In this 50-page main article, Scalia lances a splinter in the eye of the "living Constitution" people. Don't get it, yet? Well, Scalia will be happy to jam a 2x4 piece of lumber in that same eye - his footnoting is right on point. In contrast, the critiques by famous (and liberal) Harvard law professors and other attendants pale in comparison. I suspect that is why the good Justice agreed to write the book in this manner. The Harvard types furnish only silly words-without-meaning to support their claims of a "living Constitution". The contrast is spectacular and enlightening.

Understanding the legal lingo is difficult to begin with for those outside the judicial profession. Some writers add to this with their scholarly padding while others communicate quite clearly what they hope to. Scalia certainly fits in the latter, Tribe the former.

Scalia it would seem proposes what true Biblical exegeis seeks, to find the original intent, while Tribe hedges on this even being possible. As Scalia succinctly puts it in his reply, "if one can't interpret original meaning in the Constitution, can we have any fair statutes?

Salient was this Scalia retort to Tribe: "Prof. Tribe takes refuge in candar and ... self-conscious humility. Rejecting base certitude he acknowledges that he does not know the answer to either of these questions. Indeed, he is not even sure and mean to disparage candor and humility, virtues that are not only admirable but also rare, particularly in intellectual circles. They would assuredly carry the day if the issue before us were quality of character, rather than soundness of interpretative theory. But they are of little use to the judge who must determine whether and whither the Constitution has wandered, and who is not permitted to render a candid and humble judgment of undecided."

Amazed as questioning of inclusion of Constitutional interpretation while entertaining statutes. Does not the Constitution form the basis for all law?

Scalia easily carries the day in this excellent discussion.

The centerpiece of this excellent book is an essay called "Common Law Courts in a Civil Law System," where Justice Scalia outlines and defends his theory of statutory and constitutional interpretation. The second part of the book has reactions from three law professors and an historian. Scalia then responds in a (testy) Afterwards that suggests that he doesn't take criticism well.

Scalia, a judge, believes that judges seek to grab power by covertly making laws. Prior to the 20th century, they made laws by manipulating common law precedents in the guise of "interpretation." The adoption of the Constitution and the growth of written laws should have ended this chicanery but didn't -- judges used the concept of "legislative intent" to evade the clear meaning of statutes and invented the notion of an "evolving constitution" to rewrite constitutional law as they saw fit.

To combat these evils, Scalia wants judges to decide cases by applying the "original meaning" of a statute or constitutional clause -- a strategy he calls "textualism." He has many intelligent things to say about statutory interpretation. Unfortunately, his theory of constitutional interpretation is a mess. Nothing in the text of the Constitution endorses "textualism" or any other rigid interpretive approach; on the contrary, the document's many vague, open-ended clauses made it inevitable that courts would create a "common law" of the Constitution. Historical investigations into "original meaning" may not yield certain, non-manipulable results, as shown by the disagreements among historians in this area. Clauses such as the First Amendment may not have had a clear "original meaning" at all.

No one in 2003, not even conservative jurists, really wants the country to be ruled by the "original meaning" of the Constitution. Freezing the Constitution in the understandings of 1791 or 1868 would only lead to permanent divisive pressures to amend the Constitution in ways that would probably horrify conservatives like Scalia. The Justice knows this. He accepts the legitimacy of stare decisis as an exception to textualism, even though it requires judges to uphold "wrong" Constituional decisions. He also knows that courts grappling with novel areas like TV broadcasting will find little guidance in the "original meaning" of the First Amendment: as Scalia concedes, "In such new fields, the Court must follow the trajectory of the First Amendment" -- "trajectory" being Scalia's euphemism for a Constitutional "common law."

The biggest disappointment is Scalia's failure to give an historically-informed, "inside" view of how the Supreme Court adjudicates cases, weighs political and legal factors, and adapts the Constitution to changing social circumstances in a way that preserves the Court's legitimacy. This would have given the reader a basis for deciding whether or not our affairs are sensibly arranged. Instead, Scalia reverts to the cliche that judicial lawmaking is undemocratic. He's right, it is, big deal. So is the Senate. So is the electoral college. And so are many other exceptions to pure democracy that Americans have put up with over the centuries. The question is not whether a limited judicial role in lawmaking is undemocratic. The question is whether it is bad.

To answer that question, we need to know how institutions function and interact in practice. Scalia fails on this score, reverting to cliches rather than analysis. True, federal judges are unelected -- but they are also above the fray of everyday politics, do their business case by case, give reasons for their decisions, and are subject to long-distance political control through the appointments process. Legislators, on the other hand, are indeed elected by the voters -- but they are also corruptible, short-sighted, subject to sleazy pressures, and unrepresentative of the electorate (how many black women are in the Congress?). Scalia should have discussed these institutional realities. Instead, he grinds an axe on behalf of a theory of adjudication that has never been followed in practice and never will be -- least of all by him.

"A Matter of Interpretation" is brief, thought-provoking, and jargon-free. The subject matter is important. It deserves a rating of five stars. I gave it only four because Scalia himself deserves only three.

Although I disagree with the Justice, I found him easier to understand than his critics. I also enjoyed having different legal theories of interpretation defined. I still believe that judicial activism protects the rights of the individual better than any other method. I would rather have my rights cultivated than retarded by the government and the international (so called US) corporation.

In this tidy book, Justice Scalia puts forward his theory of jurisprudence and takes on the subject of judicial philosophy and what he calls the modern movement of judicial activism. He begins by giving an overview of the history of common law and judicial review, in which he contends that judges historically respected stare decisis - that is, previous rulings. Only in modern times, with the rise of democratic activism, has the desire of judges to "make law" become a problem of significant proportions.

Scalia then gets to the heart of his argument - that the role of the judge is not to ascertain the intent of legislators, but rather to ascertain the meaning of the words contained in a particular document. In this sense, he a textual purist compared to activists who will search out the meaning of particular pieces of legislation by evaluating legislative history, popular press, Congressional record, etc. He concedes that language must be interpreted, but he argues that there is a disciplined approach, and a liberal approach. The disciplined approach he supports would evaluate text within the notion of reasonable interpretation, "placed alongside the remainder of the corpus juris."

"Government by unexpressed intent is simply tyranny," Scalia argues. "That seems to me the essence of the famous American ideal set forth in the Massachusetts Constitution. A government of laws, not of men. Men may intend what they will; but it is only the laws that they enact which bind us."

Scalia argues that the fact that some texts bear multiple interpretations does not sink the enterprise of textualism. The divide on constitutional questions is not between what the framers intended and what they wrote, but rather between original meaning and current meaning. Scalia argues it is precisely the threat of abolishing cherished rights that makes original meaning important - it is a protection against those, (say Nazis) who would seek to impose a new order or new interpretation of acceptable governance. He argues that the notion of a "living constitution" has narrowed the straits of American freedom, not expanded them. The prevailing mood may or may not be just in the eyes of history, but leave that to the legislators and the great debates among thinkers and politicians; don't seek to encode today's moods in tomorrow's constitution through judicial activism. The avenues for changing the constitution and expanding its purview are well known -- otherwise, leave legislating to the legislatures.

Tribe and Dworkin offer the most interesting rebuttals. Dworkin seeks to root constitutional interpretation in broad principles of understanding and rights; Tribe concedes he has no theory of jurisprudence, other than he finds it difficult to accept the certitude of either Dworkin or Scalia that they have the right interpretation. His is a strange argument. Scalia never says the Constitution does not bear multiple interpretations, but he does argue for a more disciplined approach, in which rights are not found willy nilly in the minds of judges and then imposed on the original document by which we are governed. One annoying aspect the book: Tribe responds both to Scalia's original essay and his counter rebuttal within the first rebuttal -- before we have even read Scalia's response. This got a tad confusing and did not add much to the overall discussion.

Herein lies the central problem of The Living Constitution: If a written constitution's guarantee's are mutable through judicial interpretation, then they mean nothing at all and offer no enduring protections. The "whole purpose [of a written constitution]," Justice Scalia reminds us, "is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that `evolving standards of decency' always `mark progress,' and that societies always `mature,' as opposed to rot." Advocates of The Living Constitution insist that its evolution will always result in greater, not diminished, personal freedom. Setting aside the question of why liberty should always trump authority in their primeval battle, the historical record refutes this assertion. Not only has the Court eviscerated constitutional property and contract rights -- and Scalia suggests, it may do the same to the Second Amendment's right to keep and bear arms -- it has moved on to truncate the Eighth Amendment's Confrontation Clause, holding that in some instances a criminal defendant no longer has the right to confront his accuser, despite the express command of the Constitution to the contrary. Unmoored from the Constitution's text as historically understood, the Court is free to decide, for instance, that modern America has too much political speech and rewrite the Free Speech Clause to provide for congressional regulation, much as the minority leaders of both houses of the Congress now propose.

When a written constitution's guarantees are but wet clay in the hands of willful federal judges, law depends on caprice and we inescapably become a nation of men, not laws. For, as Justice Scalia warns, "When you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant, and are assured that there is no necessary connection between the two, your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought mean . . .." This is equally true in constitutional adjudication as in statutory interpretation, except that constitutional decisions are vastly more difficult to reverse. The Constitution ceases to mean what it says, ceases to codify certain prescriptive rights slowly asserted and established against the claims of the crown and its successors, and comes to solely reflect the prejudices of contemporary federal judges, which are unlikely to be reflective of broader social consensus.

Russell Kirk has written, "Not by force of arms are civilizations held together, but by the threads of moral and intellectual belief. In the hands of the Fates are no thunderbolts: only threads and scissors." These threads are necessarily woven from below, through the slow formation of social consensus; when consensus is broad and deep enough that something is thought fundamental to liberty, it is then formally added to the Constitution through Article V. But when judges take it upon themselves to legislate and amend through judicial interpretation outside of Article V, as Professor Glendon points out in her elegant commentary, "democratic elements in our republican experiment atrophy. American men and women not only are deprived of having a say on how we order our lives together, but we lose the skills of self-government." This doubtless fosters the cynicism and alienation from authority which is seen everywhere today.

Early in this century Justice Oliver Wendell Holmes famously accused his brethren of trying to inscribe Herbert Spencer's economic theories into the Constitution. Today's activists are more likely to be influenced by the writings of John Stuart Mill and John Rawls, and take as their program the prohibition of expressions of traditional morality in American law and the institution of wider protections of avant-garde social behavior, in addition to eliminating whatever restraints remain on congressional legislative power and systematically boring holes into the walls separating our tripartite form of government, thereby abetting the growth of the administrative state. The increasing shrillness of debates surrounding issues the federal judiciary has preempted -- abortion and homosexual rights, among many others -- suggests that judicial activists are dangerously wielding the Fates' scissors, rending an already threadbare social fabric in their push for great and faster "social justice." As Justice Scalia points out, "Judges are not [] naturally appropriate expositors of the aspirations of a particular age; that task can be better done by legislature or by plebiscite."

Generally, conservatives today fear that the Constitution will be transmuted into an instrument of oligarchic rule, but Justice Scalia fears the increasing politicization of our fundamental law will lead to rise of a fearful populism: "If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that." Here Scalia is at his weakest. The appointment and confirmation process, like the legislative process, is more easily manipulated by a few highly motivated activists wielding influence well beyond their numbers or reasonableness than by the unwashed masses. Popular control would require political interest and exertion that the very practice of judicial activism militates against. Professor Glendon wisely asks, "Which is more likely: that unruly majorities will have their way? Or that the democratic elements in our republican experiment will wither away, while new forms of tyranny by the powerful few arise? Whom should we fear more: an aroused populace, or the vanguard who knows better than the people what the people should want?"

Perhaps judicial restraint is the true Lost Cause of American history. The last five Republican presidents have had little effect on the decisions of the Supreme Court or the culture of the law; indeed, many of the greatest judicial radicals have Republican markings (Warren, Brennen, Blackmun). But Justice Scalia's masterful essay is not in vain. For, as T.S. Eliot has written, "We fight for lost causes because we know that our defeat and dismay may be the preface to our successors' victory, though that victory itself will be temporary; we fight rather to keep something alive than in the expectation that it will triumph." We are fortunate in this decadent legal age that one jurist still contends gamely against the rot.

Thirty-one years after the resignation of Earl Warren and the ascension of Warren Burger as Chief Justice of the United States, judicial activism continues apace. The signs are everywhere today in the headlines: One day we read that the people of California that they cannot deny illegal aliens non-emergency welfare benefits, the next day that they cannot refuse to take account of a person's race in public education and hiring; the day before last, that the people of Arkansas cannot limit the terms of their own congressional representatives; thereafter, we learned that the people of Colorado cannot constitutionally withhold privileged legal status from homosexuals. Day by day the republican ideal of the American constitutional order erodes as evermore precincts of our politics and policy are drawn under the superintendence of what Nathan Glazer has called the Imperial Judiciary.

The present moment is auspicious for an affirmation of judicial restraint in a democratic society increasingly enveloped by a juridical ethic that the federal constitution is an "evolutionary" -- perhaps revolutionary -- document, the meaning of whose provisions are determined principally by our law-trained elite -- lawyers, law professors and judges. Antonin Scalia, Associate Justice of the Supreme Court and America's foremost conservative jurist, has done just that in A Matter of Interpretation: Federal Courts and the Law, a thin volume that contains his lively and lucid defense of textualism and originalism in constitutional interpretation, along with the commentary of four academics -- Laurence Tribe, Ronald Dworkin, Mary Ann Glendon, and Gordon Wood. Swords ring clearest when the Justice responds to his critics in a concluding essay, in parts sharp, witty and sound. No less than Judge Robert Bork's 1990 bestseller The Tempting of America, Justice Scalia's essay and response to his critics is easily accessible to the general reader.

Judicial activism is a term of abuse -- in some quarters, approbation -- almost as often used as misconceived. A favorite trope of the juridical left is that conservative jurists and academics are in fact the true radicals, intent on effacing at least the last forty years of development in constitutional jurisprudence. This, of course, is a Merriam Webster kind of conservatism, one that conserves the status quo, be it decadent or virtuous. The interpretive philosophies of originalism and textualism espoused by Justice Scalia and others, however, are calibrated to conserve the constitutional order of the Founders by confining judicial decisions to the text of the Constitution, as its provisions were generally understood by those whose consent made it law. Judicial activism is measured by the variance of court decisions from the limited range of meaning which the Constitution's text, properly understood, can bear, and not by their variance from certain decisions of the Warren Court or other extra-constitutional principles now in vogue.

Justice Scalia believes that the judicial impulse to activism originates in the common law education American lawyers receive. At one point judge-made or common law -- "common" because it is the law governing quotidian activity, from contracts and property transaction to tort claims -- merely reflected social and commercial usage, but sometime after the thirteenth century essentially became the application of judicial reason to the controversies of the day. Judge-made law grew in the general absence of statutory or enacted law. In law school, students learn to comb through centuries worth of Anglo-American court decisions, distilling from them the rules judges created to decide the cases before them. After these rules of decision are identified, professors and their students debate the policies underlying each decision and whether a more effective or more just rule can be imagined. As the justice points out, this can be exciting experience, as it all "consists of playing king -- devising, out of the brilliance of one's own mind, those laws that ought govern mankind." When law students become lawyers, and lawyers judges, they naturally carry with them the common law habit of judging and creating law according to their own private notions of justice.

This common law education lingers today despite the proliferation of enacted law, originating in the 1930s with the New Deal and continuing unabated through today. Judges deciding even commonplace cases today do not face the open canvass of the common law as did their predecessors centuries ago, but vast tracts of statutory and regulatory text. But the common law skills and habits learned in law school persist, and when confronted with often haphazardly drawn statutes, littered with ambiguities, the temptation to impose one's personal prejudices is often too great for a willful judge to resist. The greatest temptation of all -- with faint promises of jurisprudential immortality -- comes when a judge has to interpret the broad phrases of the United States Constitution.

The notion that the Constitution is a "living document" is common currency in legal and non-legal circles alike. The antique rights of Englishmen, the argument goes, cannot be chiseled into the constitutional granite of colonial America, fixed and indifferent to the pleas of modern society. Instead, the Constitution must be "launched upon a historic voyage of interpretation in which succeeding generations . . . [will] elaborate what the text means in ways all but certain not to remain static" (in Professor Tribe's formulation) ; and sometimes it's provisions must grow and develop to reflect "the evolving standards of decency that mark the progress of a maturing society" (in one of Justice Brennan's formulatons). The discovery or creation of new constitutional rights, and the adaptation of old ones, is possible "only through the processes of moral philosophy," as Professor Tribe admits. Of course, this ethereal voyage of interpretation is captained by our law-trained elite, taking as their polestars their private notions of social justice.

Antonin Scalia is blessed with a powerful intellect and a persuasive manner of expression. It's about time that a member of the US Supreme Court explained in terms intelligible to the average "newspaper reader" just what is going on in federal appeals courts. If not all of Justice Scalia's recommendations are correct, he certainly, at long last, has been able to ask the right questions. Proponents of judicial activism (and Scalia graciously shares space with two of the most famous, Tribe & Dworkin) will be hard-pressed to keep up the pretense that federal courts today are much more than arenas for elite social engineers to rework society in their own image and likeness. A fine study in modern legal philosophy, I recommend this work with few reservations. My complete review of Justice Scalia's book can be found in "National Catholic Register" 26 Oct. - 1 Nov. 1997, p. 6. I have seen the review posted on the Web as well.

Unfortunately, Justice Scalia's views demonstrate a profound ignorance of any scientific understanding related to his topic.
His all too common scientific blindspot can be assessed by comparing his analysis to works like E. D. Hirsch, Jr.'s (1987), Cultural Literacy, and Tom Tyler et. al.'s (1997), Social Justice in a Diverse Society.
Quite correctly, Scalia identifies his approach as "an art or a game, rather than a science" (p. 8).
By contrast, Hirsch and Tyler et. al. show how reliable data can contribute to our knowledge of important literacy processes like reading, writing, and judging.

Hirsch's literature review related to "The Discovery of the Schema" (Ch. 2) leads him to conclude that most of the "meaning" from any printed page comes not from the text but from the reader's own literacy, i.e., prior knowledge, ignorance, and disinformation.
From research in social psychology Tyler et. al. show how relevant social identities shape our judgments of justice and injustice.
In this limited but increasing empirical light, we can understand our legal conflicts much better, e.g., the 1856 Dred Scott decision that denied federal citizenship to African Americans, the belated voting rights of women in 1920, and the Warren Court's recognition that suspects (like Richard Jewell) need and deserve meaningful constitutional protection.

Contrary to Justice Scalia, the key to understanding these historical and continuing conflicts is not "moral principles" that "are premanent" (p. 146) and tied to any text and its original context.
Rather, congruent with Professor Dworkin's "semantic intention" (pp. 118-119) and Professor Tribe's "abstract principles," the most valid literacy keys are the different ways that we perceive and value or devalue the identities of others.
(This should be quite obvious to anyone who takes the time and trouble to read the Dred Scott "reasoning" & "judgment," including the two dissenting opinions.)
The fundamental key to proper legal understanding begins with perceiving African Americans, women, children, suspects, and even prisoners as persons.
Then, as the introductory or Identity Clause of the Fourteenth Amendment says, "All persons born or naturalized in the United States" are citizens and, thus, are entitled to the due process of law and its equal protection.
Depersonalization of any of these persons undermines our literacy process, the Constitution, and the democratic morality that can unite as a one nation and People.

I assume you have seen a description of the book already. The book is good enough to be recommended overall, but there were some disappointments. First, the justice does not stay long on his professed topic, the interpretation of statutes, but goes over into constitutional interpretation. Those who make replies follow gladly, and there is really little on the whole about statutory instead of constitutional interpretation. Moreover, the justice did not make it clear enough to me how his textualist philosophy differs from literalism, which he explicitly disavows. Also dissappointing is that I think the justice could have made a much stronger case for what I do glean to be his philosophy by invoking legal principles already understood when the constitution was written, and especially by invoking Justice Story's brilliant decision in Martin v Hunter's Lessee. In that decision rules of constitutional interpretation are stated clearly and authoritatively, and are much along the lines of what Scalia advocates. Lastly, Justice Scalia's essay does not measure up to the keenness of insight and language he shows in his best dissents, though there are some good moments. Despite these drawbacks, it is a very thought- provoking work and its brevity gives one less of an excuse for not reading it. It is largely free of technical vocabulary and there are no arcane discussions.