In the most exciting duel since King Kong vs. Godzilla, two judicial heavies drew blood over Judge Posner’s scandalous insinuation that, when the clock chimes midnight, Justice Scalia locks the door of his chambers, pulls down the shades and. . . does legislative history!
Scalia wittily responded by calling Posner a liar.
Scalia, essentially a crypto-mystic, believes that the Holy Constitution must be interpreted by the Absolute Word alone, unsullied by transient events (i.e., history) or “personal predilections.” “Not I, but the Constitution in me,” as St. Paul would have said, had he only known about textualism.
Posner, a federal judge, is wholly unafflicted by false modesty, having showered the world with his confident insights on everything from sex to animal rights to the Bluebook (“exemplifies hypertrophy in the anthropological sense”).
It was only a matter of time before these two primates would find the territory too small in the anthropological sense.
So when Scalia and his legal-writing sidekick came out with a 567-page tome, Reading Law: The Interpretation of Legal Texts, Posner shot back with a book review provocatively titled The Incoherence of Antonin Scalia. The review nails textualism as a big, fat rationalization for getting results that mostly coincide with Scalia’s personal predilections.
If you want to make a judge furious, just tell them they’re following their personal predilections.
The book sets out 57 “canons of construction,” or interpretive principles, and costs $49.95. Fifty-seven canons for a little over a dollar apiece sounds like a good deal. There’s no canon we can’t load up with our own ammunition.