Commonweal has posted my review of Reading Law: The Interpretation of Legal Texts, by Justice Antonin Scalia and Bryan A. Garner. The piece is behind a paywall, I’m afraid. The review reflects on the nature and value of the canons of textual interpretation–the book’s primary focus. Indeed, it might have been better if the canons had been the book’s exclusive focus. The sections devoted to constitutional theory are not the best parts of the book. The review also discusses the sense in which–notwithstanding the skeptical criticism that has been leveled at them throughout the realist period and thereafter–the canons create something like a linguistic tradition for lawyers. Here is a fragment:
Some of the most interesting studies of law approach it as a distinctive tradition. And like many traditions, law has its own language which informs and suffuses the thought of those who think and speak through it. If the language of the law is not preserved—if it decays through lack of use, disregard, or skeptical dismissal as just so much transcendental nonsense—then the tradition of law dies as well . . . .The core aim of the book is to retrieve and systematize one of the law’s most important and enduring linguistic traditions—the canons of textual interpretation. The canons are not rules as much as rules-of-thumb, presumptions about the meaning of legal texts. Skill in legal interpretation involves the capacity to discern when a canon should, and should not, yield to countervailing considerations . . . .
Reading Law is, as the authors put it, a normative treatise that introduces the language of law to an audience for whom it is largely alien while offering a refresher course for attorneys and judges who have forgotten (or who never really learned) their canons. Like all treatises, the point is not to read through from front to back and I cannot recommend marching through the book’s 414 pages (that’s before the appendices). No one who isn’t looking for it will much miss the “Scope-of-Subparts Canon” explaining the relationship of subparts to parts, or the “Punctuation Canon,” which warns against “hostility to punctuation” and whose examples include various obscure nineteenth-century precedents involving the use of semicolons. But lawyers faced with interpretive problems will find in Reading Law a pathway to a set of linguistic precepts that structure and enrich the tradition of American law. That is a worthy contribution.
This news is a little late in coming, but readers here should know that the United States Court of Appeals for the D.C. Circuit, in a 2-1 panel decision (as to this specific issue), has reversed the district court’s denial of a preliminary injunction barring enforcement of the federal government’s contraception mandate against the owners of a for-profit business. Though the panel was unanimous as to the issue of the individual plaintiffs’ standing to bring a claim under RFRA, only two judges (Judge Brown and Judge Randolph) held that the plaintiffs had satisfied the standard to obtain a preliminary injunction against the government. The court also held, 2-1, that corporations themselves do not have standing to exercise religion and so it dismissed those RFRA claims.
I recommend this thorough analysis and critique of the opinion by Kevin Walsh. For the record, and by my count (though I may have erred in my counting, and please write me if so), we now have the following breakdown among the federal circuit court of appeals:
Circuits that have rejected claims in which for-profits are plaintiffs on behalf of the corporation and the individual owners: Third Circuit, Sixth Circuit.
Circuits that have accepted claims in which for-profits are plaintiffs on behalf of the corporation but not the individual owners: Tenth Circuit.
Circuits that have accepted claims in which for-profits are plaintiffs on behalf of the individual owners but not the corporation: D.C. Circuit.
… here in New York City, and CLR Forum reader John McGinnis points us to an interesting New York Times column on the election’s likely effect on some important law-and-religion controversies. Whether the heavily-favored Democrat Bill de Blasio or the Republican Joe Lhota prevail in today’s mayoral contest, the Times reports, the next administration will likely be friendlier than the Bloomberg Administration to the city’s faith communities:
After 12 years of a mayor who has resisted making concessions to religious groups, New York City is in for a change.
The two leading candidates for mayor — Bill de Blasio, a Democrat, and Joseph J. Lhota, a Republican — have pledged to break with Mayor Michael R. Bloomberg on a range of issues at the nexus of government and religion. They say they would accommodate two of the most important Muslim holy days, allow church services on school property, and work with Jewish leaders to ease the city’s supervision of circumcision rituals.
We’ve covered the last two issues here at the Forum. With respect to church services on school property, the city has been fighting in federal court to stop churches from using public school property for worship services on Sunday; it looks like that litigation will soon become moot. And here’s a post about the particular circumcision ritual that has run afoul of city health regulators.
Religion in New York City is typically (though not always) an ethnic phenomenon. New Yorkers are not so comfortable with overt religiosity; but tribe, we understand. The greater solicitude for faith communities likely reflects a return to classic interest-group politics more than a resurgent piety. Still, it’s interesting to observe the change in tone from the hyper-secular Bloomberg Administration, which actually banned clergy from 9/11 commemorations. By the way, here’s another sign of changing religious politics. When asked to describe his religious views, de Blasio answered, “I have my own spirituality, but it doesn’t take the form of any particular religion.” Our likely next mayor is a None.
In 1862, in the only instance of a Jewish expulsion in America, General Ulysses S. Grant banished Jewish citizens from the region under his military command. Although the order was quickly revoked by President Lincoln, it represented growing anti-Semitism in America. Convinced that assimilation was their best defense, Jews sought to Americanize by shedding distinctive dress, occupations, and religious rituals.
American Jews recognized the benefit and urgency of bridging the divide between Reform and Orthodox Judaism to create a stronger alliance to face the challenges ahead. With Grant’s 1868 presidential campaign, they also realized they could no longer remain aloof from partisan politics. As they became a growing influence in American politics, both political parties courted the new Jewish vote.
Once in office, Grant took notice of the persecution of Jews in Romania and Russia, and he appointed more Jews to office than any president before him. Indeed, Simon Wolf, a Washington lawyer who became one of Grant’s closest advisers, was part of a new generation of Jewish leaders to emerge in the post–Civil War era—thoroughly Americanized, politically mature, and committed to the modernized Judaism of the Reform movement.
How can we, as people and communities with different religions and cultures, live together with integrity? Does tolerance require us to deny our deep differences or give up all claims to truth, to trade our received traditions for skepticism or relativism? Cultural philosopher Lenn E. Goodman argues that we can respect one another and learn from one another’s ways without either sharing them or relinquishing our own. He argues that our commitments to our own ideals and norms need not mean dogmatism or intolerance. In this study, Goodman offers a trenchant critique of John Rawls’s pervasive claim that religious and metaphysical voices must be silenced in the core political deliberations of a democracy. Inquiry, dialogue, and open debate remain the safeguards of public and personal sanity, and any of us, Goodman illustrates, can learn from one another’s traditions and explorations without abandoning our own.