Notes on the Scalia – Dworkin Debate (151-169).
How much discretion should the Courts have when interpreting statutes and other rules of law
including the Constitution?
On Scalia’s theory – which he labels “textualism” – judges should have very little discretion
indeed. Where the language of the statute is excessively vague or ambiguous, judges can make
modest, common-sense clarifications. But he thinks courts exceed their authority when they
attempt to ascertain the “true meaning” of a statute by drawing upon the intentions of the
lawmakers who originally wrote the law in question. He is not merely bothered by the fact that
lawmaker’s intentions can be very difficult to determine, especially when the law was passed
long ago. His greater worry is that judges will tend to substitute their own interpretation of what
the law ought (in their opinion) to mean for what the authors of the law actually intended. They
mask this operation by claiming to have found the “objective” intent behind the law; the intent
that any reasonable person would supposedly infer from the text. The Holy Trinity case nicely
illustrates his point: The Supreme Court claimed to have found an exception to the statute that
was not explicitly mentioned in its actual wording but, according to the justices, was intended by
the original authors of the law (the objective intent). Scalia rightly points out that there is no
evidence that the original authors intended that exception and that the justices are really reading
into the law something they thought it ought to contain. That violates the ideal of the rule of law;
courts are not supposed to play the role of legislators, they are supposed to apply existing laws,
not make them.
Dworkin draws an important distinction between two kinds of intention underlying any given
law: semantic intent and expectation intent. Every meaningful declarative statement is an
expression of the semantic intention of its maker. The whole point in making a statement is to
express some intention that one expects the reader or listener to grasp. When we ask a speaker
“What do you mean by that?” we are asking them to make their (semantic) intentions more clear.
The debate between Scalia and O’Connor over the correct interpretation of the words “using a
firearm” in a criminal statute was a debate over the semantic intentions of the authors of that law.
Dworkin maintains that Scalia’s textualism theory actually requires the concept of semantic
intention and Scalia grants the point. The expectation intent of a statute, on the other hand, is the
expect or hoped-for consequences that will result from the laws passage.