John was broadly on the same side as Antonin Scalia on most subjects, but he didn't think textualism was accurate in the American legal system.
Libby, Noonan, & Scalia
The interesting point about the indictment of Lewis Libby is the political nature of the process. This is not to say that the special prosecutor who sought the indictment, Patrick Fitzgerald, is corrupt or partisan. Far from it: done honestly and correctly, this sort of investigation almost invariably generates an indictable offense on the part of the parties being investigated. The offense almost never has anything to do with the ostensible reason for the investigation. It’s not supposed to. The process is a mechanism for staging show-trials. That seems to be what will happen in this instance.
Two irrelevancies can be expected to dominate public discussion of the affair.
The First Irrelevancy is favored by the mainstream media and editorial opinion. This will attempt to use the show trial as an occasion to argue that, just as Lewis Libby perjured himself when he spoke to Fitzgerald’s grand jury, so George Bush perjured himself when he made the argument for the Iraq War. The Irrelevancy is not very coherent, but it has been made repeatedly in all the media since the Libby indictment was handed up. The second irrelevancy is rather more interesting: the credibility of Joseph Wilson. I understand the matter thus, having received the Party Line from The Weekly Standard:
In early 2002, Wilson was sent to investigate rumors that Niger had agreed to sell uranium to the Baathist government of Iraq. Such a sale would have been an important violation of the disarmament strictures imposed on Iraq by the UN at the end of the Kuwait War. After the invasion, Wilson had claimed, among other things, that he was sent to Niger on the direction of the Office of the Vice President, and that he had found no evidence of a sale of uranium. However, Wilson’s actual report said a former Nigerien prime minister told him that Iraqi trade representatives had in fact been in Niger in the late 1990s, and that it was the former prime minister’s belief that the Iraqi’s were interested in buying uranium.
No sale was agreed to and no documents were signed. That trade mission would probably not have constituted a breach of the UN resolutions. On the other hand, such information would only enhance the belief in the world’s intelligence services that Iraq planned to resume a vigorous nuclear weapons program as soon as the UN sanctions were lifted. The report of the weapons inspectors in the wake of the Iraq War actually supported that surmise. However, the Coalition that invaded Iraq had believed that the invasion would reveal an active, covert WMD program. That would have clinched the argument that the Baathist regime could not be allowed to survive the removal of sanctions. That was the evidence the Administration had promised, and it was not forthcoming.
As soon as the absence of physical evidence became clear, Wilson began speaking to journalists, at first covertly. He originally conflated the findings of his report with the discrediting of a set of documents that surfaced in October of 2002, long after his mission, which purported to memorialize a uranium sale between Niger and Iraq. They were obvious forgeries, and soon recognized as such. Wilson took credit for refuting them in detail, though in fact he had never seen them. When he went public with an account of his mission to Iraq, which he did in an Op Ed in the New York Times in the summer of 2003, he no longer mentioned the forged documents directly, but he did claim that his visit to Niger had been a matter of great interest and urgency to the Administration.
The White House, for its part, especially wanted to emphasize that Wilson had been sent to Niger by the CIA, which was known to be hostile to the argument for war. Additionally, his wife worked for the agency in some classified capacity; it was she who recommended him for the Niger assignment, a point that Wilson at one point strenuously denied. It was, perhaps, the Administration’s attempts to surreptitiously publicize these points that occasioned the current unpleasantness.
During the Watergate Scandal, there would have been no way for a story like the Second Irrelevancy to shape the public consensus on the matter. In those days, freedom of the press was enjoyed only by those who owned a press. Today, of course, we know from the defenestration of Dan Rather what the engaged Internet can do, even when the major papers refuse to print a word of the online version. Will the president be left to a fate worse than Spiro Agnew's, or will the blogosphere arise as a single geek to smite his enemies?
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Peggy Noonan, in her column of October 27, provides this perspective on the troubles of the Republic:
Our elites, our educated and successful professionals, are the ones who are supposed to dig us out and lead us....they're living their lives and taking their pleasures and pursuing their agendas; that they're going forward each day with the knowledge, which they hold more securely and with greater reason than nonelites, that the wheels are off the trolley and the trolley's off the tracks, and with a conviction, a certainty, that there is nothing they can do about it.
On the other hand, one could argue that any political system that could devote so much energy to something as fatuous as the Libby prosecution must feel invulnerable, as if its members believed it made no difference what they did with their time.
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Supreme Court Justice Antonin Scalia has a long review in First Things (November 2005) of Law’s Quandary, by Steven D. Smith. The book attempts to explain the philosophical issues that attend contemporary jurisprudence, particularly the question of just what “law” is. The review is remarkable for setting out Scalia’s theory of textualism.
Scalia’s argument is that, in a democracy, the people are the source of the law, but the substance of the law is the text. We cannot look to the intent of the law makers; legislators generally intend several things, not all of them consistent. Scalia argues that texts can be meaningful without looking to the intent of an author. He does not allude to chatterbots, unfortunately.
Neither should judges try to make law. That, of course, was exactly what they did during the great age of the common law, when most law consisted of a floating consensus. However, that is completely unjustified in an era in which almost all law is codified. It is most emphatically not justified in a constitutional regime in which there is a written constitution.
One point in particular struck me: under a textualist regime, stare decisis would count for very little. Prior decisions would be recorded simply as a convenience, so that people will have some idea how the courts will react when asked to apply a law again in the future.
For myself, I take an optimistic view of the ascertainability of textual meaning; some of my best friends are chatterbots. However, Scalia’s model just does not describe how courts in the Anglo-American system deal with statutory texts. Even the most conservative judge, interpreting the clearest text, looks first to the opinions of other judges to find what the text means. That is how the common law system works. The suggestion that the common law system ceased to exist when the old common law rules were codified is mere nonsense.
There is an ancient legal system in which stare decisis counts for very little. It’s called the civil law, based ultimately on Roman law, and represented in the world today chiefly in the form of the Napoleonic Code. That system has its merits, but it’s not the one we have.
Copyright © 2005 by John J. Reilly