The Reasonable Reader (according to who?)

Scalia argues that judges looking for “legislative intent” are able to insert their own preference for the law. By deciding what a legislature should have meant, the answer to the question inevitably collapses into whatever the judge thinks is right. However, in his defense of textualists, Scalia seems to also draw on the same problem. He quotes Joel Prentiss Bishop, who wrote that the goal is “‘the meaning which the subject is authorized to understand the legislature intended,’” an “objectified intent” deduced by a reasonable person reading the text (17). The problem is that a reasonable reader is not neutral – the judge can still decide which context is relevant. 

Scalia’s main objection to legislative intent is that it lets judges hide their preferences as legislative purpose. He writes “when you are told to decide…on the basis of what [the legislature] meant…that will surely bring you to the conclusion that the law means what you think it ought to mean” (18). He proposes the reasonable reader, who is informed by the original public meaning of the text at the time of its adoption, and does not take social standards or other modern values into account. But substituting a reasonable reader for a wise legislature still results in the same problem. When a judge asks what a reasonable reader would understand a statute to mean, their best answer is still what they themselves understand it to mean. More specifically, each justice likely has a different notion of what is reasonable, influenced by where they grew up, what college they attended, etc. Cultural differences can greatly skew perception, even if modern social values are meant to be excluded. Moreover, Scalia cites Karl Llewellyn, who wrote that “there are two opposing canons on almost every point” (26). Scalia attempts to respond by claiming every canon is “simply one indication of meaning” and that they are rarely used, but eventually concedes that there can be two canons if the “judge wishes to make it so” (27). This is especially important when now, many justices do impart their own views. Perhaps not always intentionally, but implicitly so that the decision aligns with their political values. 

 In the Church of the Holy Trinity case, Scalia claims that this is a prime example of judicial overreach. The court held that a statute barring workers from immigrating into the US to perform “labor or service of any kind” did not cover a church hiring a pastor because Congress could not have intended to cover religious ministers, only manual laborers. Scalia’s opinion is quite firm; he states, “the act was within the letter of the statute, and was therefore within the statute: end of case” (20). But reaching that conclusion still requires the choice to decide that “any kind” means what is said rather than what the context suggests, which is that the exceptions for singers, actors, etc don’t imply ‘non-manual workers.’ Both the reasonable reader and the purposive reader rely on implicit and biased interpretations to a similar degree. Perhaps Scalia might say that the reasonable reader allows for judges to be more conservative because judgement relies on publicly available evidence and text instead of private thoughts. I do think that it may result in more constrained interpretations, but even then, this is a difference of degree, not a fundamental change to judicial lawmaking.