Scalia Et Al. vs. Posner: Slo-Mo Bun Fight

There’s something of a slow motion bun fight going on at the high table of the US legal world. The spat started a long time ago. In fact, it’s origin is probably lost in the mists of time like the sources of animosity between the Houses of Slytherin and Gryffindor, having to do, as it does, with the correct way to extract meaning from a written document. No one could be wronger than the person on the other side of the interpretation divide, whatever it may be; and feelings run hotest when the document in question is a quasi-sacred document like the US Constitution.

At the moment those flinging the rolls at each other are textualists, so called, and purposivists, so called (a word, by the way, that looks alarmingly like “positivists”, which it most emphatically is not). Though Justices Scalia and Posner have both been toiling in their respective courts for some time now and sniping at the other team, open bunfare broke out recently with the very recent publication of a book favourable to textualism by Scalia and SMU law prof and legal lexicologist Bryan Garner, Reading Law. Bun two was thrown by Posner the purposivist in his lengthy review of the book for the New Republic, catchingly titled “The Incoherence of Antonin Scalia.”

Return fire was swift. Bryan lofted his crusts from his Law Prose website in “Response to Richard Posner.” Ally Ed Whelan, the very Voldemort to “liberal activist” judges and a former Scalia clerk, tossed his whole breadbasket in the National Review Online, to wit: “Richard A. Posner’s Badly Confused Attack on Scalia/Garner” Part 1, Part 2, Part 3, Part 4, Part 5. (I think the parts have stopped now.)

At the moment no further buns have come from the purposivists side, though Justice Posner did respond to a question from Above the Law about the spat. (That piece also sets out the background of sniping between the antagonists.)

I’m not about to step into the firing range here. Besides, I’ve been a card-carrying purposivist since law school and couldn’t pretend to be neutral (and cannot for the life of me understand constitutional originalists). But I commend these texts to you. This is basic stuff, for all the fun I’m having with it, and surely everyone who traffics in texts should have a thoughtful approach to interpretation that at least addresses the issues that will persist.


  1. Does this mean that if I, for example, were to (temporarily) take a part-time gig as a Small Claims Court (or even higher) judge, I could write an article titled “The Incoherence of … [Judge X] and survive the LSUC disciplinary hearing?

    Heaven forfend a practicing lawyer should ever be heard to suggest, in print, that those at the top of the ladder occasionally stray from the path of logic, let alone lose their intellectual GPS devices to that extent.

  2. Or the NJC hearing

    I think I’d higher Guy Pratte before the committee did. Or maybe a certain AL (Robert “Rob” Ford’s lawyer). Gall is good.


  3. And remember to check my spelling, too – though “higher” almost works.