Laurence Tribe and his theory of Statutory Interpretation

This essay endorses the method of statutory interpretation espoused by Laurence Tribe in Justice Antonin's Scalia's book, A Matter of Interpretation. Tribe's approach is a much closer approximation to current judicial practice in the United States, which although far from perfect, is superior to the method of statutory interpretation advocated by Scalia.

Summary of Scalia's Views. In his book, Scalia discusses both methods of statutory and constitutional interpretation, the latter being a special subspecies of the former. With some exceptions, Scalia believes in giving laws the meaning that their words import and in case of ambiguity, largely confining a judge's recourse to the surrounding circumstances which explain what was intended by the law. He would not, however, give any weight to legislative intent, except in helping to understand what the words in the law mean. In constitutional cases, the only intent he deems relevant is the intent of the authors of a law at the time it was enacted, such as that of the framers in 1787-1790. Departure from textualism, what Scalia calls his philosophy, has in Scalia's view produced judgemade law, the imposition by judges in the cases they decide of their personal or subjective views of what the law ought to be and their value judgments. The result is anti-democratic, has led to the discovery by the courts of rights which were never intended by the law (or Constitution's) original draftsmen and overall to a diminution

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the time of the founding fathers. Tribe points out that Scalia has an oversimplified and circumscribed view of reality. Neither laws nor Constitutions are created nor do they continue to exist in a societal vacuum. Times change and with them so must statutory meanings if they are to continue to have contemporary relevance. This is particularly true of the Constitution which as Chief Justice John Marshall declared in McCulloch v. Maryland, 17 U.S. 316, 415 (1819), was designed "to endure for the ages" (p. 88). The very brevity of the document itself proves that its authors did not expect that it would cover every conceivable situation which might arise in the course of the great republic it was intended to govern. A good example is the death penalty. As Scalia pointed out, the framers lived in a society in which the death sentence was prescribed for a number of serious offenses, not only murder; and it is mentioned elsewhere in the Constitution. That does not, however, mean that it must be banned by the Constitution forever. The 'cruel and unusual punishment' clause of the 8th Amendment has been interpreted differently at different times by the Supreme Court. See for a liberal interpretation, for example, Furman v. Georgia, 408

Category: Government - L