What Scalia Got Right, What He Missed, and How to Fix It: A Sterling Interpretive Framework Correction
What Scalia Got Right, What He Missed, and How to Fix It: A Sterling Interpretive Framework Correction
Third Edition
Antonin Scalia’s A Matter of Interpretation (1997) is the most philosophically serious account of legal textual correspondence in the modern American tradition. Its governing claim — that legal interpretation consists in recovering the original public meaning a reasonable contemporary of the enactment would gather from the enacted text — is stated with unusual precision and defended with genuine argumentative force. Its polemic against four dominant legal interpretive traditions correctly identifies a structural problem that no subsequent legal theorist has fully answered.
It is also limited in a specific and correctable way. Scalia wages his polemic against formation traditions in legal interpretation from within an unexamined formation tradition of his own. He identifies Formation Capture at the object level of legal reasoning with precision and force. He does not notice that Formation Capture is operating at the meta-level of his own governing theory of meaning.
This essay develops that correction. It applies the Sterling Interpretive Framework’s Formation Strip to Scalia’s text, surfaces the presuppositional architecture his position requires but does not provide, and proposes six classical philosophical commitments as the grounding that corrected textualism requires. It also owns a consequence that critics have correctly identified: the corrected theory is not a repair of Scalia from within his own commitments. It is an alternative framework — one that takes Scalia’s governing insight seriously enough to give it the philosophical architecture it needs to be coherent. Scalia’s project, correctly understood, requires this architecture. His text does not provide it. The alternative framework is the completion of his project, not its replacement.
I. What Scalia Actually Argues
Before any correction is possible, Formation Capture in the reading of Scalia must be stripped. Two formation traditions have governed this text’s reception so thoroughly that its actual content is rarely attended to with care.
The conservative legal formation reads the text as a coherent and complete judicial philosophy whose positive thesis is vindicated by its internal consistency. The progressive legal formation reads it as a sophisticated rhetorical performance that licenses conservative constitutional results under cover of principled method. Both formations have generated readings that correspond more to their governing presuppositions than to what the text actually contains.
What the text actually contains is this. Scalia identifies a structural problem in American legal interpretation that is real and precisely diagnosed: the common-law mindset, intentionalism, legislative history, and the Living Constitution all share the same governing error. They enable the interpreter to substitute his own values for the enacted text under cover of professional method. The common-law judge who asks “what is the most desirable resolution of this case” and then searches for doctrinal cover for that resolution is committing what the Sterling Interpretive Framework calls Formation Capture: the impression of what the legal text requires has been generated by the interpreter’s formation rather than by correspondence to what the text actually says.
The specific demonstration using Church of the Holy Trinity v. United States is the most philosophically precise moment in the book. The Supreme Court acknowledged explicitly that the statute’s literal terms covered the conduct at issue, and then found that the conduct was not covered because it was contrary to the “spirit” of the act. Scalia’s verdict — “the act was within the letter of the statute, and was therefore within the statute: end of case” — is the SIF’s verification test applied to statutory interpretation: would this reading survive if the Court had no formation-derived preference for the result? No. The letter of the statute survives. The spirit-of-the-act reading does not.
Scalia’s positive correspondence standard is also more precise than either formation tradition acknowledges. He is not arguing for original intent. He is arguing for original public meaning: what the text would reasonably be understood to mean by a competent contemporary of its enactment. In his Response to Ronald Dworkin he adopts the term “import” — what the text “would reasonably be understood to mean,” distinguished from what it was intended to mean. This is a genuine philosophical move shifting the correspondence standard from a psychological question about what the legislators had in mind to a semantic question about what the words communicated.
II. The Formation Tradition Scalia Imports
The Formation Strip applied to Scalia’s text reveals a stack of unargued philosophical presuppositions that the text imports as self-evident. This is Formation Capture at the meta-level.
One objection must be acknowledged before the stack is named. Scalia did not treat these presuppositions as naive dogmas; he defended them pragmatically as necessary for the rule of law and democratic legitimacy. That pragmatic defense is genuine and carries real argumentative weight. But a pragmatic defense of a presupposition is not the same as an argument that the presupposition corresponds to how meaning and interpretation actually work. Scalia’s pragmatic arguments establish that his presuppositions produce better institutional outcomes than the alternatives. They do not establish that his presuppositions are true. The Formation Strip requires the second kind of argument, not the first. The absence of that argument is what the Formation Capture charge names.
The Fixation Thesis holds that the linguistic meaning of a legal text is fixed at the moment of its framing. Scalia does not argue for it. He does not engage the hermeneutical challenge that meaning is always constituted through the ongoing encounter between past and present rather than existing as a historical fact awaiting recovery.
The Public Meaning Thesis holds that the relevant semantic content is what was accessible to a competent contemporary public at the moment of enactment. The text assumes the existence of such a public and the determinacy of what it would have understood. It does not address the structural objection that when members of the founding generation disagreed about the meaning of a constitutional provision — as they frequently did — the idea of a uniquely correct determinate public meaning existing as a matter of historical fact cannot be recovered as a fact but must be constructed as a normative standard.
The Disengaged Interpreter is the philosophical anthropology the method requires and never defends. A critic has noted that Scalia was not offering a full anthropology but prescribing judicial discipline: bracket personal policy preferences. This is true. But prescribing judicial discipline requires an account of what judges are capable of doing — of what bracketing one’s formation consists in and whether it is genuinely possible. Without that account, the prescription floats free of any explanation of how it could be executed. The corrected theory provides that account. Scalia’s text does not.
The Positivist Legal Ontology holds that the legal content of the law just is, or is determined by, the communicative content of the authoritative text. Even if the Fixation Thesis is true and original public meaning is recoverable, a further philosophical argument is required for why that meaning constitutes what the law now requires. Scalia provides rule-of-law and democratic-legitimacy arguments, but these are consequentialist arguments about why being bound by fixed meaning produces better institutional outcomes, not arguments about what the law actually is.
Together these four presuppositions constitute the modernist stack. Scalia inherits it from the formation of analytic legal theory without identifying it as a formation. He wages a polemic against object-level formation traditions while being governed by a meta-level formation tradition in his theory of meaning.
III. The Six Commitments: Load-Bearing Conditions, Not Preferences
The correction proposed here replaces Scalia’s modernist stack with six classical philosophical commitments: substance dualism, libertarian free will, moral realism, correspondence theory of truth, ethical intuitionism, and foundationalism. A serious objection must be answered: are these commitments themselves formation-derived preferences, introduced as foundations without undergoing the same Formation Strip applied to Scalia?
The answer is that the six commitments are not a formation-derived set of preferences. They are individually demonstrable as load-bearing conditions for specific phases of correct rational inquiry — conditions whose removal does not merely complicate those phases but forecloses them as genuine cognitive operations. The argument is phase-by-phase. It is not an assertion that these commitments are self-evidently correct. It is a demonstration that without each one, a specific operation required for correct interpretive practice is structurally unavailable.
Substance dualism (C1) and the three-way separation. Recognition — the phase in which the impression is identified as an impression rather than as reality — requires separating three things that Reception presents as a single undifferentiated event: the external text, the impression of its meaning, and the prohairesis that receives both. This three-way separation presupposes that there is a categorical difference between the rational faculty doing the separating and everything else. Without that categorical difference, the agent cannot distinguish himself from the impression. He is constituted by it. Formation Capture is inescapable by definition: every reading is the output of the agent’s formation because the agent is nothing but his formation.
The compatibilist objection holds that determined or emergent processes can still involve rational evaluation and error-correction without requiring a non-physical self. This is a serious position. But it does not answer the specific challenge. The Formation Strip requires distinguishing a formation-governed reading from a correspondence-governed reading. If the agent who conducts the Formation Strip is himself constituted by his prior causal history — including his training, his institutional role, his formation — then the Strip is not a genuine correction. It is the output of a different causal history producing a different reading. The difference between Formation Capture and correct reading is not the agent’s genuine act of examination. It is the causal history that includes his Stoic training producing a different output than the causal history that does not. The Strip has not corrected the formation. It has substituted one formation for another.
The compatibilist may respond that reasons-responsiveness is sufficient for genuine correction. But reasons-responsiveness is itself a capacity whose exercise is determined by prior conditions. The agent who is reasons-responsive in the relevant sense is reasons-responsive because of his formation. His response to reasons is the output of a causal history that includes his training in reasons-responsiveness. The question of whether his examination of the impression is formation-governed or correspondence-governed cannot be answered by noting that he is sensitive to reasons, because his sensitivity to reasons is itself a formation-dependent capacity. Substance dualism provides the only account on which the examining faculty is genuinely prior to the formation it examines rather than constituted by it.
Libertarian free will (C2) and the genuine pause. The pause between impression and assent must be a genuine moment of originating agency. Without libertarian free will, the pause is a causal interval between predetermined outputs. The corrected reading is not the agent’s genuine act. It is the final stage of a causal sequence that was determined before the pause began. The Formation Strip is not something the agent does. It is something that happens in the agent as the output of prior conditions. The difference between a judge who has been trained in the Strip and one who has not is a difference in causal histories, not a difference in genuine cognitive acts. Libertarian free will is required to make the Strip something the agent genuinely performs rather than something that happens in him.
Moral realism (C3) and Formation Capture as genuine error. Without moral realism, the evaluative claim embedded in a formation-governed reading cannot be false. If there are no mind-independent moral facts, the claim that an interpreter has imported a preferred value into the text is not a claim that he has made an error. It is only a claim that his values differ from the corrector’s values. The Formation Strip produces not a correction but an alternative preference. This is Stanley Fish’s conclusion, and it is logically sound given anti-realist premises. Moral realism is required to make Formation Capture a genuine error rather than a mere difference of preference.
Correspondence theory (C4), ethical intuitionism (C5), and foundationalism (C6). Correspondence theory establishes that readings can be assessed as true or false by reference to what the text actually contains. Without it, the distinction between a reading governed by the text’s features and a reading governed by the interpreter’s formation cannot be drawn as a distinction between correct and incorrect. Ethical intuitionism — within the constraints specified in Section V — provides the termination point for the Formation Strip: some textual features are directly apprehensible without the mediation of a further formation-governed process, and those provide the Examination phase with something to test against. Foundationalism establishes that the correction procedure terminates at architecturally prior first principles rather than regressing infinitely. Without it, the Formation Strip is a circular procedure: each assessment requires a further assessment, which requires another, without end.
The package of six commitments tracks a Stoic-influenced classical view. That is correct. But the charge of formation-derivation requires showing not only that the commitments have a philosophical home but that they are not individually load-bearing in the way claimed. The phase-by-phase argument shows that each commitment is required for a specific cognitive operation. The alternative frameworks — compatibilism, anti-realism, coherentism — do not merely complicate those operations. They redefine them in ways that make the Formation Strip’s governing distinction — between formation-governed and correspondence-governed readings — unavailable as a distinction between correct and incorrect rather than between different processes producing different outputs.
IV. Moral Realism and Constitutional Moral Terms: The Argument
The most contested specific application of the six commitments to Scalia’s position is the claim that moral realism stabilizes the interpretation of constitutional moral terms. The objection is that this move imports a preferred metaphysics to solve an interpretive problem rather than demonstrating that the text requires it. The objection must be answered directly.
When the Constitution uses abstract moral language — “cruel and unusual,” “equal protection,” “due process” — the semantic content of those terms at the moment of enactment is underdetermined between two readings. The first reading fixes semantic content at the enacting generation’s concrete applications of the moral concept. The second reading fixes semantic content at the moral concept itself. Scalia consistently chose the first reading without providing a principled argument for why the first reading better corresponds to the semantic content of the moral terms the framers used.
The argument for moral realism at this point is not that moral realism is a preferred metaphysics. It is that the first reading fails the correspondence test on its own terms. Moral terms are not proper names for whatever the framers happened to find cruel. They are moral concepts with content that can be applied correctly or incorrectly to particular cases. The semantic content of “cruel” at the moment of enactment was the concept of cruelty — whatever that concept correctly applies to — not the framers’ list of applications of it. A reading that fixes semantic content at the historical list rather than the concept misidentifies the semantic unit. It fails to correspond to what the moral term actually communicated.
The anti-realist objection holds that correct application can be determined by evolving reflective equilibrium within a tradition or by public meaning at enactment including framers’ applications as strong evidence. The response: reflective equilibrium within a tradition is Formation Capture elevated to a method. It is precisely the community substitution that the SIF identifies as a named failure mode. The community’s settled view of what cruelty requires is the formation. Testing a reading against that settled view is not a correspondence test. It is a conformity test. The anti-realist who treats correct application as what the relevant community converges on after reflection has not escaped Formation Capture. He has institutionalized it.
The alternative — fixing semantic content at framers’ applications as strong evidence of public meaning — is closer to Scalia’s actual position. But as the essay demonstrates, this fixes semantic content at the list rather than the concept and fails the correspondence test on its own terms. Moral realism enters not to import a preferred metaphysics but to make the concept’s application non-arbitrary: if the semantic content is the concept of cruelty rather than the framers’ applications of it, what does the concept correctly apply to? Without moral realism, that question has no answer beyond current preference, and the abstract-principle reading collapses into the Living Constitution that Scalia correctly rejects.
A critic has noted that Scalia resisted abstract-principle readings precisely to avoid judicial moral philosophy, and that the essay’s correction moves toward a form of moral reasoning under the guise of semantic content plus realism. This is accurate. The corrected theory does require judges to engage with moral philosophy when constitutional moral terms are at issue. That requirement is the price of taking the semantic content of those terms seriously. The alternative — fixing content at historical applications to avoid moral philosophy — is not a neutral interpretive choice. It is a philosophical commitment to a specific account of how moral terms function semantically, one that the Formation Strip does not survive.
V. Ethical Intuitionism: Scope and Constraints
The claim that some textual features are directly apprehensible by any competent rational reader requires precise specification. Without constraints, the claim degenerates into “what seems clear to a rational reader” — which is precisely the opening for Formation Capture that the Formation Strip is designed to close.
Three constraints govern the scope of ethical intuitionism in the corrected theory. First: the feature must be one whose apprehension does not require the imposition of a prior value judgment. The plain meaning of a statutory term specifying a numerical threshold is directly apprehensible; whether that threshold produces just outcomes is not. Second: the feature must be one where competent readers of the relevant linguistic community at the time of enactment would converge on the same apprehension. Where the founding generation disagreed about the meaning of a constitutional provision, the feature is not directly apprehensible and the Formation Strip must work harder. Third: where moral terms are at issue, the directly apprehensible feature is not the moral concept’s correct application but the fact that a moral concept is being invoked — the fact that the text is reaching for an objective moral standard rather than enacting a list of preferred practices. The concept’s correct application requires the moral realism argument developed in Section IV, not direct apprehension.
With these constraints, ethical intuitionism provides a termination point for the Formation Strip in cases where the semantic content is genuinely determinate and accessible: the interpreter can stop testing at the point where the plain semantic content is directly apprehensible rather than regressing infinitely through further formation-stripping procedures. This is the limited and specific role C5 plays in the corrected theory.
VI. The Corrected Formation Strip in Legal Interpretation
The corrected theory replaces Scalia’s disengaged interpreter with the Formation Strip as an explicit, executable procedure. The judge applying the corrected textualism does not claim to be formation-free. He claims to be conducting an honest examination of his formation-derived impressions before assenting to any reading of the text.
Reception: the text arrives carrying an impression of what it means, produced by the entire formation of the reader. The first requirement is to recognize the impression as an impression rather than as a direct reading of the text’s features.
Recognition: the judge performs the three-way separation — the external text, the impression of its meaning, and the prohairesis that receives both are distinguished as three separate things. The external text has not arrived pre-interpreted. The interpretation is the impression. The judge is the one for whom the separation is being made.
The Pause: between the impression’s arrival and the assent to a reading, the judge maintains the structural gap in which the Formation Strip operates. This requires a self that is prior to the impression (C1) and capable of genuine originating examination (C2). Without both, the pause is not a moment of genuine agency.
Examination: within the pause, the judge applies the Formation Strip. What features does the text actually have? Where the text uses determinate linguistic conventions directly apprehensible to a competent reader (C5), the Formation Strip converges quickly. Where the text uses abstract moral language, the additional argument from Section IV applies: the semantic content is the moral concept, not the historical list, and what the concept correctly applies to is governed by moral facts (C3) assessable by reference to an architecturally prior standard (C6).
Decision: the judge assents to the reading that survives the Formation Strip. This assent is genuinely his own (C2). It corresponds to what the text actually contains (C4). The verification test is applied: would this reading be selected if the judge had no formation-derived preference for it?
VII. The Minimalism Objection: Why Less Is Not Enough
A serious practical objection holds that better textualist practice can incorporate bias checks, rigorous historical semantics, and awareness of underdeterminacy without the full classical stack. The six commitments are unnecessary philosophical overhead. Scalia’s strength was its relative minimalism; the corrected theory makes interpretation more philosophically rigorous at the cost of accessibility and neutrality across worldviews.
The objection is understandable and must be taken seriously. But it rests on a misunderstanding of what bias checks require. The minimalist textualist who practices bias checks without the six commitments is in the position of someone who applies a correction procedure without any account of what makes a reading correct rather than merely different. Bias checks require a standard against which bias is identified. Rigorous historical semantics requires that historical semantic facts are real and recoverable. Awareness of underdeterminacy requires distinguishing genuine underdetermination from formation-governed apparent determinacy. Each of these requires — implicitly, even if not acknowledged — the commitments the minimalist claims to avoid.
The minimalist textualist is not operating without the commitments. He is operating with them unexamined. This is precisely Scalia’s situation. The essay’s charge against Scalia is not that he held the wrong commitments. It is that he held them without examination — which is exactly what makes them a formation tradition rather than a grounded philosophical position. The minimalist who advocates bias checks without examining the commitments those checks require has not avoided the problem. He has relocated it.
The accessibility objection — that few judges can execute a philosophical audit of their own formation — is pragmatically real but not philosophically decisive. The question of what correct interpretation requires is distinct from the question of whether practitioners can execute it perfectly. Scalia himself acknowledged that textualism is an ideal not always achieved. The corrected theory agrees. Its contribution is to specify more precisely what the ideal consists in and what its philosophical grounding is. Approximations of the ideal are more reliable when the ideal is precisely specified than when it is vaguely gestured at.
The neutrality-across-worldviews objection — that the corrected theory will persuade mainly those already sympathetic to classical realism and Stoic anthropology — is correct as a sociological prediction and irrelevant as a philosophical evaluation. The question is whether the six commitments are true and whether they are individually load-bearing for correct interpretive practice. The answer to both is yes, as the phase-by-phase argument demonstrates. That the argument will not persuade committed naturalists or anti-realists is a consequence of the genuine philosophical disagreement between those positions and the classical framework, not a deficiency of the argument itself.
This argument against minimalism is not a novel move within the Sterling Interpretive Framework. It is the application of the classical foundationalist argument against pragmatism and instrumentalism in epistemology to the specific domain of legal interpretation. Recognizing its classical structure confirms that it is not question-begging within the SIF tradition but sound across any tradition that takes the distinction between correct and incorrect seriously.
The classical form of the argument runs as follows. The pragmatist says: we do not need to resolve foundational metaphysical questions in order to conduct inquiry effectively. Reliable methods, peer review, correction mechanisms, and sensitivity to evidence are sufficient. The foundationalist replies: your reliable methods presuppose that there are facts to be reliably tracked. Your peer review presupposes that reviewers can genuinely correct each other rather than merely substitute one formation for another. Your sensitivity to evidence presupposes that evidence is evidence of something real. Each of these presuppositions is a substantive philosophical commitment your minimalism has not examined. You are not operating without foundations. You are operating with unexamined ones.
The minimalist textualist is in precisely this position. His corpus linguistics presupposes that historical semantic facts are real and recoverable — which is correspondence theory (C4). His bias checks presuppose that bias is a genuine error rather than a different preference — which requires moral realism (C3). His peer review presupposes that a reviewing judge’s correction is genuinely his own act rather than the output of a different formation — which requires something like substance dualism (C1) and libertarian free will (C2) to be a genuine correction rather than a substitution. His awareness of underdeterminacy presupposes a standard against which determinacy is measured — which requires foundationalism (C6). The minimalist has not dispensed with the six commitments. He has declined to examine them. That is not minimalism as a philosophical achievement. It is Formation Capture at the foundational level — the same charge the essay brings against Scalia, now brought against Scalia’s defenders.
The classical foundationalist argument does not prove that the specific six commitments proposed here are true. It proves that any practice of anti-capture inquiry — however modest its self-description — relies on commitments of exactly the kind the six commitments supply. The minimalist who objects that judges should not need to resolve debates over free will or metaethics in order to practice disciplined textualism is correct as a practical observation about judicial training. He is incorrect as a philosophical observation about what disciplined textualism requires. The debates are already embedded in the practice. The only question is whether they are examined or not.
VIII. What the Corrected Theory Vindicates and What It Does Not
The corrected textualism vindicates Scalia’s governing insight with philosophical precision. Texts have determinate features that constrain correct readings. The interpreter is genuinely prior to his formation and capable of apprehending those features through correct attention. The appropriate object of aim in legal interpretation is correspondence to what the enacted text actually says.
The corrected theory does not vindicate all of Scalia’s constitutional results. The corrected theory’s correspondence standard is more demanding than Scalia’s stated standard in one specific respect: where constitutional moral terms are at issue, the correct semantic reading fixes content at the moral concept rather than the historical list, and the verification test must be applied to the judge’s own formation-derived impression of what the concept correctly applies to. The conservative legal formation produces formation-derived impressions of what constitutional provisions originally meant, just as the progressive legal formation does. The verification test is formation-neutral. It makes no exceptions for the theorist who proposed it or the justice who inspired it.
The corrected theory is an alternative framework. It accepts that characterization and does not apologize for it. It is an alternative that takes Scalia’s governing insight — replace formation-governed reading with correspondence-governed reading — more seriously than his own text did, by providing the philosophical architecture his project requires to be coherent. The architecture rests on six commitments that are not formation-derived preferences but individually demonstrable enabling conditions for the phases of correct interpretive practice.
Scalia correctly identified what the project of legal interpretation requires: recovering what is actually there rather than importing what the formation expects to find. His text, working within an unexamined formation tradition, could not quite deliver that. The alternative framework can. That is its purpose and its justification.
Third edition. Analysis and text: Dave Kelly, 2026. Theoretical foundations: the Stoic philosophical corpus of Grant C. Sterling, including the Sterling Interpretive Framework v1.0 and the Sterling Logic Engine v4.0. Primary text: Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 1997). Research foundation: extended search report on Scalia’s philosophical presuppositions, including analysis from Solum, Greenberg, Fish, Gedicks, Fallon, Dworkin, Powell, Tribe, Wood, Glendon, and Sunstein. Prose rendering: Claude.