Don't These Guys Do This Stuff For A Living?

A friend sent me the link to this article by Stanley Fish where Fish argues that theories of constitutional interpretation do not actually explain how judges reach their conclusions. He was sort of reviewing a book and the authors responded here. I hope to write something about this argument next week, but right now I want to respond to a passage that jumped out at me:

... [T]he ... process Fish describes is no different in principle from the view of “original intention” professed by jurists like Antonin Scalia, Robert Bork, and William Rehnquist. Both try to escape the burdens and responsibilities of seeking the true or best interpretation by fleeing to some kind of authority: for the former, the authority is the extra-constitutional doctrines of some favorite philosopher, and for the latter, the authority is the extra-constitutional intentions of the framers. Both approaches thus disregard the intentions evident on the surface of the Constitution as written – the “positive law,” if you prefer. A central aim of our book is to display the many fallacies of the Scalia-Bork-Rehnquist view of “original intention.”

Here's a bio for the authors of this passage:

Sotirios A. Barber is a Professor of Political Science at the University of Notre Dame and James E. Fleming is The Honorable Frank R. Kenison Distinguished Scholar in Law at Boston University School of Law.

It boggles the mind that in 2008 there are still people writing books about Scalia's theory of original intent. To be honest I don't know enough about Rehnquist's view and Bork was, at one point, an intentionalist, so maybe they haven't gotten to memo (or read any of his books) where he argues for following original meaning, not intent. But Scalia? An intentionalist? Seriously? The "central aim" of their book was to rebut Scalia's intentionalism? Have they read anything he's written?

Scalia devotes a major chunk of his piece in A Matter of Interpretation to rejecting the idea that the intentions of the authors matter. Scalia is often criticized because his brand of textualism presupposes a plain meaning exists and that we should ignore the intentions of the legislators. Scalia believes the meaning of a legal text is how an average person would understand it when it was enacted. Scalia's originalism is just an expansion of his textualism: the plain meaning of the constitutional text is what a regular person would have understood it to mean at that time.

Attacking Scalia's intentionalism is like attacking Ronald Dworkin's Positivism or Steven Breyer's textualism. You'd actually be attacking the position they spent a large amount of time rejecting themselves.

How could two professors write a book about a topic and get it so completely backwards? It's one thing to attribute false views to someone or misunderstand his arguments. But to claim that someone holds a position that he actually strongly opposes is just bad scholarship. That's one book I'm not going to be reading.