Matinee et Te i Rin” ‘chery Aa mer Felet Coto Anna a ra tin sey Ay Gama kant by Rte MS A Matter of Interpretation FEDERAL COURTS AND THE LAW * AN ESSAY BY ANTONIN SCALIA, AMY GUTMANN, EDITOR ‘GORDON 5. WOOD MARY ANN GLENDON RONALD DWORKIN,Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws * ANTONIN SCALIA Tre rune can attempt to pin the cunt ne floes of he eco crstng al tea ae few soggeion or improvement ar! tft lenge bt ta thoi Aer wh hrc atonal — THECOMMON LAW ‘The first year of law school makes an enormous impact upon the mind. Many students remark upon the phenomenon. They ‘experience a sort of intellectual rebirth, the acquisition of ‘whole new mode of perceiving and thinking. Thereafter even i they do not yet know much law, they do-as the expression goes—"think ikea lawyer” ‘The overwhelming majority ofthe courses taught in that ist year, and surely the ones that have the most profound effect, teach the substance, and the methodology, of the common law—torts, for example; contracts; property; criminal law. ‘grt! for hal and research sistance by Mathew Previn for sbstative uggetne by agen Scala 3‘American lawyer cut their teeth upon the common law: To un- derstand what an effect that must have, you must appredate that the common law is not really common law, except insofar a judges can be regarded as common. That is to 5a its not “customary law,” or a reflection of the people's practices, but is "athor la developed by the judges. Perhaps in the very infancy ‘of Anglo-Saxon law it could have been thought that the courts ‘were mere expositors of generally accepted social practices; and certainly, even in the fall maturity ofthe common law, a well ‘established commercial or social practice could form the basis for a court's decision. But from an early Uine—as early as the Year Books, which record English judicial decisions from the tend of the thirteenth century tothe beginning ofthe sixteenth— any equivalence between custom and common law had censed to exist, except in the sense tht the doctrine of sare decisis ren- dered prior judicial decisions “custom.” The istues coming be- fore the courts involved, more and more, refined questions to Which customary practice provided no answer Oliver Wendell lokmes's influential book The Common La!— which is stil suggested reading for entering lw students—talks a lite bit about Germanic and early English custom. But mostly ‘talks about individual court decisions, and about the jadges, famous and obscure, who wrote them: Chet Justice Choke, Do- deridge, J, Lord Holt, Redfield, CJ, Rolle, CJ, Hankfor, J, Baron Parke, Lord Ellenborough, Peryam, CB, Brett, J. Cockburn, CJ, Popham, CJ, Hyde, CJ, and on and on and fon. Holmes’s book is a paca to reason, and to the men who brought that faculty to bear in onder to crete Anglo-American law. ‘This is the image ofthe law—the common law—to which an aspiring American lawyer is frst exposed, even if he has not read Holmes over the previous summer as he was supposed to He learns the law, not by reading statutes that promlgate i ot treatises that summarize it, but rather by studying the judicial ‘opinions that invented i, This isthe famous case-law method, "Otiver Wendl Holos, e, The Common Ls (85 4 ploncered by Harvard Law School in the last century, and ‘brought to movies and TV by the redoubtable Professor Kings: Sd of Lave Story and The Paper Chase, The student i directed 9 read series of case, st forth ina text called a “casebook,” de- signed to show how the law developed. Inthe field of contracts, for example, he reads, and discusses in cass, the famous old case of Hadley v Baxendale? decided a century and a half ago by the English Court of Exchequer: A mill in Gloucester ground 10 halt oto speak) because ofa cracked crankshaft To get anew fone made, it was necessary to send the old one, as a model, to the manufacturer of the mill's steam engine, in Greenwich. The riller sent one of his workers to a carriers office to see how long the delivery would take; the worker told the arrer's clerk ‘that the mill was stopped, and thatthe shaft must be sent inume- lately The clerk replied that if the shat was reeived by noon, it would be delivered the next day. The miller presented the shaft to the carrier before noon the next day and paid the Fe to have it transported; but because of the carrier's neglect it was delivered several days lte, with the result that several addi- onal days passed before the mill got back into service. The miller sought, as damages for breach ofthe shipping contract, his lost profits for those day, which were ofcourse many times ‘what the carrier had received asthe shipping charge. The carrier sald that he was not liable for such remote consequences. ‘Now this was a fairly subtle and refined point of aw. As was the case with most legal points that became the subject of itiga- tion t cold not realy be sad that there existed a general prac- tice thatthe court could impose as commen, customary law. The court decided, essentially, that the carrer was right, laying own the very important rule, that in a suit for breach of com tract not all damages suffered because ofthe breach can be re- covered, but only those that “could have been fairy and reason- ably contemplated by beth the partes when they made Ithel contract.” The opinion contains some policy rvasons for that result citation ofa few ealier opinions by English courts, and 2°93, 156 Bg Rp. 15 85, 5citation of not a single snippet of statutory lav-—though counsel arguing the cate dd bring to the cour’ attention the dispost- tion set forth inthe French Civil Code. For there ts no relevant English statutory law; contract law was almost entirely the erea- tion and domain of English judges. | must interject at this point that even according to the new rule—that only reasonably foreseeable damages are recover. able—the miller rather than the carrer should have won the case. ‘The court’ opinion simply overlooks the fact that the carrer ‘was informed thatthe mill was stopped; it must have been quite lear tothe carriers clerk that restarting the mil was the reason forthe haste, and that profits would be lost while the mull was Idle, But if you think itis teribly important thatthe cave came ‘ut wrong, you miss the point of the common law. Inthe grand Scheme of things, whether the right party won is really second ary. Famous old cases are famous, you see, not because they ‘ame out right, but because the rule of law they announced was, the intelligent one. Common-law courts performed two func: tions: One was to apply the law tothe facts. All adjudicators— French judges, arbitrators, even baseball umpires and football referees—do tha. But the second function, and the more impor ‘ant one, was to mat the la, 1f you were siting in on Professor Kingsild’s class when ‘Hadley Baxendale was the assigned reading, you would find that the class discussion would not end with the mere descrip- tion and dissection of the opinion. Various “hypothetical” ‘would be proposed by the crusty (yet, under it all, good- hearted) old profesor, testing the validity and the sufficiency of the “foreseeablty” rule. What if, for example, you area black- smith, and a young knight rides up on a horse that has thrown «shoe, He tells you he is returning to his ancestral estate, Black- acre, which he must reach that very evening to clam his inher tance, or else it will goto his wicked, no-good cousin, the sheriff ‘of Nottingham. You contract to put on a new shoe, for the going rate of thre fathings. The shoe is defective, or is badly shod, the horse goes lame, and the knight reaches Blackacre too late 6 Are you really lable for the fll amount of his inheritance? Ist reasonable to impose that degree of lability for thee farthings? ‘Would not the parties have seta different price i abiity of that amount had been contemplated? Ought there not tobe in ether ‘words, some limiting principle to damages beyond mere fore soeabilty? Indeed, might aot that princple—call it presumed fssumption of risk—explain why Hadley v. Berendle reached the right result after all, though not for the precise reason it assigned? What intellectual fun al of this iI explains why first-year law school is 80 exhilarating: because it consists of playing ‘common-law judge, which in tar consists of playing king — ‘devising, out ofthe briliance of one's own mind, those laws that ‘ought © govern mankind. How exiting! And no wonder so ‘many law students, having drunk at this intoxicating well, as- ite forthe rest of their ives to be udgest Besides the ability to think about, and devise, the “best” legal rule, there is another skill imparted in the first year of law ‘school that is essential to the making of a good common-law judge. It is the technique of what is called “distinguishing” ‘cases. That is a necessary ski, because an absolute prerequisite to common-law lnwmaking is the doctrine of stare deciss—that is, the principle that a decison made in one case will be fl- lowed in the next. Quite obviously, without such a principle common-law courts would not be making any “law”; they ‘would just be resolving the particular dispute before them. It js the requirement that future courts adhere to the principle ‘underlying a judicial decision which causes that decision to be legal rule. (There is no such requirement in the cviblaw sys- tem, where it isthe text ofthe law rather than any prior judicial interpretation of that text which is authoritative, Prior jadiial opinions are consulted for their persuasive effet, much as aca- demic commentary would be; but they are not binding) Within such a precedent-bound common-law system itis critical for the lawyer, ofthe judge, to establish whether the case at and falls within a principle that has already been decided, 7Hence the technique—or the art, othe game—of “distinguish- ing” earlier cases It isan art of a game, rather than a science, because what constitutes the “holding” ofan earlier case is not ‘well defined and can be adjusted to suit the occasion. At its broadest, the holding ofa cate can be said to be the analytical principle that produced the judgment-—in Hailey v. Baxendale, for example, the principle that damages for breach of contract must be foreseeable. In the narrowest sense, however (and courts will squint narrowly when they wish to avoid an earlier decision), the holding ofa case cannot go beyond the facts that were before the court. Assume, for example, that a painter com tracts with me fo paint my house green and pains it instead a ‘god-awful puce. And assume that not 1, but my neighbor, sues the painter for this breach of contract. The court wotild dismiss the suit on the ground that (in legal terminology) there was no “privity of contract”: the contrat was between the painter and ‘me, not between the painter and my neighbor? Assume, how- lever, later case in which a company contracts with me to 1e- pair my home computer; it does. bad jb, and as a consequence my wife loses valuable files she has stored in the computer She sues the computer company. Now the broad rationale ofthe ear Tier case (no suit will le where there is no privity of contract) ‘would dictate dismissal ofthis complaint a8 well. But « good common-law lawyer would argue, and some good common-law judges have held, tha that rationale doesnot extend to this ew fact situation, in which the breach ofa contract relating 1 some thing used inthe home harms a family member, though not the ‘one who made the contract! The earlier case, in other words is “distinguishable” It should be apparent that by reason ofthe doctrine of stare decisis, as limited by the principle I have just described, the ‘common law grew in a peculiar fashion—rather like a Scrabble board. No rule of decision previously announced could be ‘mse, but qualifications could be add t it.The ist case lays 2 Monahan Town of Mathes, 88 NE 24951, 57 (Mae 1950) +5 ef, Gren Mire, 156479 (a 1) 6 ‘onthe board: “No lability for breach of contractual duty with- ‘out privity” the next player adds “unless injured party is men ber of household.” And the game continues. “As | have described, thie system of making law by judi opinion, and making law by distinguishing earlier cases, is what every American law student, every newborn American lawyer, fret sees when he opens his eyes. And the impresion remains for life. His image of the great judge—the Holmes, the Car- dozo—is the man (or woman) who has the intelligence to dis: ‘em the best rule of law for the case at hand and then the skill to perform the broken-fcld running through earlier cases that eaves him free to impose that rule: distinguishing one prior case on the lf, straght-arming another one on the right, high ‘stepping away from another precedent about to tackle him from the Tear, until (bravo!) he reaches the goal—good lave. That image of the great judge remains with the former law student when he himself becomes a judge, and thus the common-law tradition is passed on DEMOCRATIC LEGISLATION Allof this would be an unqualified good, were t net fora trend in government that has developed in recent centuries, called de~ rmocracy. In most countries, judges are no longer agents of the king, for there are no kings. In England, I suppose they can be regarded as in a sense agents of the legislature, since the Su- preme Court of England is theoretically the House of Lords ‘That was once the system inthe American colonies as wel the legislature of Massachusetts is still honoriially called the Gen ‘eral Court of Massachusetts. But the highest ed of Massachu- setts judges is called the Supreme Judicial Court, because at about the time of the founding of ou federal republic this coun tty embraced the governmental principle of separation of powersS That doctrine is praised, as the comerstone of the soe Pat Spend army Ine, 18S. Ce 17, 159-6 (198 °proposed federal Constitution in The Feleralist No. 47. Consider the compatibility of whet Madison says in that number with the ancient system of lawmaking by judges, Madison quotes Mon- texquies approvingly) as follows: "Were the power of judging joined with the legislative, the life and Liberty of the subject would be exposed to arbitrary controul for the judge would then be the legisatr"* 1 do not suggest that Madison was saying that common lve lawmaking violated the separation of powers. He ‘wrote in an era when the prevailing image of the common law twas that of a preexisting body of rales, uniform throughout the nation (rather than different from state to state, that judges merely “discovered” rather than created. It is only in this cen- tury, with the rise of legal realism, that we came to acknowledge that fges in fact “make” the common law, and that each state bas its own. 1 do suggest, however, that once we have taken this realistic view of what common-law courts do, the uncomfortable rela- tionship of comman ae lavmaking to democracy (if not to the technical doctrine of the separation of powers) becomes appar ent Indeed, that was evident to many even before legal realism ‘aried the day It was one ofthe principal motivations behind the law-cofation movement of the nineteenth century, a8s0- elated most prominently withthe name of David Dudley Field, but espoused by many other avid reformers as well. Consider ‘hat one of them, Robert Rantoul had to say ina Fourth-a-july address in Scituate, Massachusets, in 1836; Judgemade law sex post facto law, and therefore unjust. An act isnot fbn by the statute law but it becomes void by Judicial construction. The legislature could not ect this forthe Constitution forbids The judiciary shall not usurp lgiive over says the Bl of Rights yet it not only usurps, bt runs ot beyond the confines of legishtive power ‘the Foist No, 4, a 328 Games Madson aah Cooke e161) (orphan og. Therefore to Montnge, The Spit of hr Le 152 Thoma Naget rans, Hafner Pub Co, 198, ry Jdge-made ln is spec legislation. The jg is human, an {ees the bias which the coloring ofthe particular case ives. If he ‘wishes fo deci the nest case ciferentiy, be has only to distin {ish and thereby make 9 new Lae. The egilature must act on [Benral views, and prescbe at once fra whale clas of casos” “This is just by way of geting warmed up. Rantoul continues, ater observing that the common law “has been called the per fection of human reason’: “The Conamon Law i the perfection of human feasan jst as cohol the perfection of sugar Thesubte prt ofthe Common {aw is reason double distil, ill what ws wholesome and mo- ‘rtive becomes rank poison. Reason i sweet and pleasant to the ‘unsophisticated intellect but his subimated perversion of re- fon beers, and pepleces and plunges its victims into mazes of eroe ‘The judge makes Iw, by extorting from precedents something which they do not contain. He extends his precedents, which ‘were themasves the extension of others, il by ths accommodat= {ng principle, a eho system of law i bull up without the a thorlty or interference of he legislator! “The nineteenth-century codification movement espoused by Rantoul and Field was generally opposed by the bar, and hence did not achieve substantial success, except in one fil: civil pro- ‘cedure, the lav governing the trial of civil cases” (have always found it curious, by the way, thatthe only ld in which law- vers and judges were willing to abandon judicial lawmaking Robes Rantoul Oaton at Sut aly 4196) Ker Halle al, Arc Lp Hier 317, 37-18 0590. Th court major cade ofc precede, known asthe Pld Code (oer Dovid Duley Fas who played 4s fle its enced, was frsed in New trk in 184 By the end the tenn eay sar ‘shad ben adopted in many ses Si Laven M Pian A ry of Anan La 30-4 57).was afield important to nobody except Megan's, lawyers, and judges. Civil procedure used to be the only statutory course taught in first-year law school.) Today, generally speaking, the ‘old private-law fiekds—contracts, tots, property, trusts and es- tats, family lav-—remain imaly within the contol of state com rmon-law courts." Indeed, itis probably true that in these fields judicial lawmaking can be more freewhecing than ever, since ‘the doctrine of stare decisis has appreciably eroded. Prior deci- sions that even the cleverest mind cannot distinguish can now- days simply be overruled. oe ‘My point in all of this isnot thatthe common law should be scraped away asa bamace on the hull of democracy. Tam com tent to Teave the common la, and the process of developing the common lav, where ita. It has proven to bea good method of Aeveloping the law in many felds—and perhaps the very best method, An argument can be made that development of the bulk of private lw by judges (a natural aristocracy, as Madison accurately portrayed them)” isa desirable imitation upon pop- lular democracy. Or asthe point was more delicately putin the late nineteenth century by James C. Carter of New York, one of the ardent opponents of Field's codification projects, “the ques- tion is shall this growth, development and improvement of the law remain under the guidance of men selected by the people fon account of their special qualifications for the work” (ie, juelges) or “be transferred to a numerous legislative body, dis. >The penipl excpon to ths stemen consis of esa Unorn as states erated In tly ena! ome by all or alae maj of ‘ltlelltrs, n an eft to ache ane ues with pect fo ‘ertsin aspects of tome commorlaw fll Se, ey Union Comarca {Ce ULA. 5 199), Unfore Mariage and ivorce Act 9A ULA. 156 (088; Urfrm Consume ret Code, 7A ULA. 170585. "VoThe members ofthe jdcry depart, by the mode of thi ap ostmen ar wll byte mate and permanency a tf enor [rom the people to share machin hk ops” Te Fara No.4, 34 rab Cooke el, 18D. 2 ‘qualified by the nature of their duties for the discharge ofthis supreme fanction?”™ Bat though T have no quarrel with the common law and its process, Ido question whether the alitude ofthe common-law Judge the mind-set that asks, “Whats the most desirable reso- ution ofthis case, and how can any impediments to the achieve- ‘ment ofthat result be evaded?”—is appropriate for most ofthe ‘work that T do, and much of the work that state judges do. We live in an age of legislation, and most new law is statutory law. ‘As one legal historian has put it, in modern times “the main business of government, and therefore of law, (is) lgilative and executive... Even private law, so-called, fhas been] turn- ing stattory: The lion's share ofthe norms and rules that act ally govern(| the country [come] out of Congress and the lgis- latures .., The roles of the countess administrative agencies fare] themselves an important, even crucial, source of law" This is particularly true in the federal courts, where, with a {qualification so small it does not bear mentioning, there is no such thing as common law. Every issue of law resolved by a federal judge involves interpretation of text—the text of a regu lation, or ofa statute, or ofthe Constitution. Let me put the Con- stitation to one side forthe time being, since many believe that that document isin effect a charter for judges to develop an evolving common law of freedom of speech, of privacy rights, fand the like [think that is wrong—indeed, as I shall discuss below, [think i frustrates the whole purpose of a written con stitution, But we need not pause to debate that point now, since ‘very stall proportion of fudges’ work is constitutional inter~ pretation in any event. (Even inthe Supreme Cour, would es timate that wel less than a fifth of the issues we confront are constitutional issues—and probably less than a twentieth if you texclude criminal-law cases) By far the greatest part of what I "ames. Care, Te Piped Cain of Our Caner La 87 (Ne ‘ors Broing Post Peiting Ot 188 "ida, pene, at aand all federal judges dois to interpret the meaning of federal Statutes and federal agency regulations, Thus the subject of stat- Utory interpretation deserves study and attention in its own right as the principal business of judges and (hence) lawyers It will not do fo teat the enterprise as simply an inconvenient rmoxiern add-on tothe judge’ primary roe of common-law lave- maker. Indeed, attacking the enterprise with the Mr. Fit men- tality of the common-law judge isa sure recipe for incompe- tence and usurpation. “THE SCIENCE OF STATUTORY INTERPRETATION ‘The state ofthe science of statutory interpretation in American Jaw is accurately described by a prominent treatise on the legal process as follows: Do not expect anybody's theory of sattory inerpretation, whether itis your own or somebody else's, to be an accurate salement of what courts actually do with tates. The hard truth ofthe mater sth American courts have no itll, gencr- ally accepted, and consist applied theory of statutory ier- elation ‘Surely this isa sad commentary: We American judges have no intelligible theory of what we do most. Even sadder, however, is the fact that the American bar and ‘American legal education, by and large, are unconcerned with the fat that we have no intelligible theory. Whereas legal schol- arship has been at pains to rationalize the common law—to de- vise the best rules governing contracts torts, and so forth—it has ‘been seemingly agnostic as to whether there is even any such thing as good or bad rules of statutory interpretation. There are few law-school courses on the subject, and certainly no required "Hoey Ma, ed Albert Sacks The ea rs 16 (nN sre. Je & Philip Peed, 199 “ tones the science of interpretation (Ft scence) allt tobe picked up piecemeal, through the reading of cases (good and bad) in substantive fields of law that happen to involve statutes, such as securities law, natural resources law, and employment law. ‘There isto my knowledge only one treatise on statutory inter- pretation that purports to treat the subject ina systematic and ‘comprehensive fashion—compared with about six or so on the substantive field of contracts alone. That treatise is Sutherland's Statutes and Statutory Construction, frst published in 1891, and “updated by various editors since, now embracing some eight ‘volumes, As its size alone indicates, its one of those law books ‘that functions primarily not as a teacher or adviser, but asa liti- {gtor’s research tool and expert witness—to say, and to lead {You to cases that say, why the statute should be interpreted the ‘way your client wants, Despite the fact that statutory interpre- tation has increased enormously in importance, its one of the few felds where we have a drought rather than a glut of trea- tises—fewer than we had fifty years ago, and many fewer than ‘a century ago. The last such treatise, ther than Sutherland, was Professor Crawford's one-volume work, The Construction of Stat- utes, published more than half a century ago (1940). Compare that with what was available in the last quarter or so ofthe ine- teenth century, which had, in addition to Sutherland's original 1991 treatise, a Handbook othe Construction and Interpretation of the Laos by Henry Campbell Black (author of Blac’s Law Dic- tionary), published in 1896; A Commentary onthe Interpretation of States by G. A. Endlich, published in 1888, an Americanized version of Sir Peter Maxwell's 1875 English treatise on the sub- ject the 1882 Commentaries onthe Writen Laws and Ther Ierpre- fation by Joel Prentiss Bishop; the 1874 second edition of Sedg- swick’s A Tretse onthe Rules Whi Gover the Interpretation and Construction of Statdory and Constitutional Law; and the 1871 Pot- ter’s Duar on Statues, an Americanized edition by Plat Potter of Sir Fortunatus Dwarre's influential English work 5“INTENT OF THE LEGISLATURE” ‘Statutory interpretation is such a bread subject that the sub- stance of it cannot be discussed comprehensively here. It is ‘worth examining afew aspects, however, fonly to demonstrate the great degree of confusion that prevails, We can begin at the ‘most fundamental possible level. So utterly unformed is the American law of statutory interpretation that not only i its ‘methodology unclear, but even its very objective is. Consider the basic question: What are we looking for When we construe a ‘statute? You will find it frequenily said in judicial opinions of my ‘court and others thatthe judge’ objective in interpreting a stat "ue is to give effect to “the intent of the legislature.” This prin pile, in one form or another, goes back atleast as far as Black- stone.® Unfortunately, it doesnot square with some o the (few) generally accepted concrote rules of statutory construction. One Is the rule that when the text of a statue is clear, that isthe end of the matter Why should that beso, if what the legislature in- fended, rather than what it suds the object of our inquiry? In selecting the words of the statue, the legislature might have rmisspoken. Why not permit that to be demonstrated from the floor debates? Or indeed, why not accept, as proper material for the court to consider, later explanations by the legislators—a sworn affidavit signed by the majority of each house, fo exam ple, as to what they rly meant? "Another acepted rule of construction is that ambiguities ina nevly enacted statute are to be resolved in such fashion as to make the statute, not only internally consistent, but also com patible with previously enacted laws. We simply assume, for [Purposes of our search for “intent,” thatthe enacting legislate ‘was aware ofall those other las, Well ofcourse that fiction, 51 Wiliam Bache, Comments the Las of Engen 9-62, 51 (phot. erat 1991755. 16 and if we were really looking for the subjective intent of the ‘enacting legislature we would more likey find i by paying at tention to the text (and legislative history) ofthe new statute in isolation. ‘The evidence suggests that, despite frequent statements tothe ‘contrary, we do not really look for subjective legislative intent. We look for a sort of "objectified” intent—the inten that a rea- sonable person would gather from the fext ofthe law, placed Alongside the remainder ofthe corpus juris. As Bishop's od te- tise nicely putt elaborating upon the usual formulation: "Ihe Primary object of all rules for interpreting statutes isto ascertain ‘the legislative intent; or, exatly, the meuning which the subject is ‘authorized to understand the legislature intend." And the reason ‘we adopt this objectified version i, I think, that it is simply in- compatible with democratic government, or indeed, even with fair government, to have the meaning ofa law determined by ‘hat the lawgiver meant, rather than by what the lnwgiver ‘promulgated. That scems fo me one step worse than the trick ‘the emperor Nero was said to engage i: posting edicts high up fon the pillars, so that they could not easily be read. Government by unexpressed intent is similarly tyrannical. ei te lew that governs, not the intent ofthe lwvgiver. That seems to me the ‘essence ofthe famous American ideal set frth inthe Maseacht- setts constitution: A government of laws, not of men. Men may intend what they will but it is only the laws that they enact ‘which bind ws. In reality, however, if one accepts the principle that the object of judicial interpretation i to determine the intent of the legisla- ture, being bound by genuine but unexpressed legislative intent rather than the lw is only the theoretical threat. The practical threat is that, under the guise or even the self delusion of pursu- ing unexpressed legislative intens, common-law judges will in "fog rete Bop, Comments oh Wet Lao ad hi Ie tation 5758 Boston: Lite, Brown, & Co. 182) temps sd) (ais ite, wvfact pursue their own objectives and desires, extending their lavemaling proclivities from the common law to the statutory field. When you are told to decd, not on the basis of what the legislature said, but on the basis of whet it meon!, and are as- sured that there is no necessary connection between the two, Your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have ‘meant; and that will surely bring you tothe conclusion thet the lve means what you think i ought to mean —orhich is precisely how judges decde things under the common law. As Dean Lan- dis of Harvard Law School (a believer inthe search fr legisla- tive intent) put it ina 1930 article: (the geavest sins ae perpetrated inthe name ofthe intent of he legislature Judges are rarely wing to admit their ole as actual lawgiver, and such admissions a¢ are wrung fom thee un willing ips i in the ld of common and net statute law To condone in thes ratances the practice of aking in ers ofthe letent ofthe lejlatue, asthe leilature had abated par tiular meaning to certain words When iti apparent that he in tents that ofthe judge, is to condone lait practices too rem ‘acenof the medicine aan ‘To give some concrete form to the danger I warn against, let me describe what I consider to be the prototypical case involving the triumph of supposed “legislative intent” (a handy cover for judicial intent) over the text ofthe aw. It is called Church ofthe bly Trinity v. United States and vas decided by the Supreme ‘Court of the United States in 1892. The Church of the Holy Thin- ity located in New York City contracted with an Englishman to James M. Landi A Neto “Stary Ie,” Har. 1 Rex 86, eras. iS US 657 50, ‘come over tobe its rector and pastor. The United States calmed that this agreement violated a federal statute that made it un- lawful for any person to “in any way assist or encourage the Importation of tigration of any alien... into the United States, vnder contract or agreement... made previows to the impor- {ation or migration of euch alien, 9 perform labor or service of any kind in the United States.” The Circuit Court for the Southern District of New York held the church lable forthe fine thatthe statute provided. The Supreme Court reversed. The en tral portion ofits reasoning was as follows: must be conceded thatthe act of the [church is within the later ofthis eton, for the relation of rector to his church is one of service, and implies lbor on the one side with compenstion fon the other Not onl are the general words labor and service ‘both ise fin the statute] but also ait were to guard against any arrow interpretation and emphasize « breadth of meaning, t2 them fade “of any kind” and, further. the ith section fof ‘de saute), which makes specie exceptions, among them pro- Fessional ctor, att, lecrers, singers andl domestic servants, strengthens the Wea that every other kind of labor and service twas intended! to be reached by the fist scion. Whe there is reat fore fo this reasoning, we cannot think Congress intended fo denounce with penis wansoction Ike that nthe prevent ‘cise It a fami re tata thing may be within the eter of the statute and yet not within the satte, Because not within its spr, nor wits te intention of 8 makers”, “The Court proceeds to conchude from various extratetual indie cations, including even a snippet of legislative history (highly ‘unusual in those days), chat the statute was intended to apply ‘only to manual labor—which renders the exceptions for actors, artists, lecturers, and singers utterly inexplicable. The Court then shifts gears and devotes the last seven pages ofits opinion 0 88.98, »nation, That being so, it says, “Ihe construction invoked cannot be accepted as correct" It concludes: Teisa case where thre was presented a definite ev In view of, which the legislature used general terms with the purpose of reaching all phases ofthat evil and threat, unoxpetely Is developed that the general language thas employed is broad fnough to reach ces and acts which the whole story and fe fof he county afm could not have boon intentionally legislated galas isthe duty ofthe courts under thowe circumstances, to sy tha, however brood the language ofthe statute may be, the although within the ete, snot within the intention ofthe legislature, and therefore cannot be within the tatte?* Will of course I think thatthe act was within the leter ofthe statute, and was therefore within the statute: end of ase? Con ress can enact foolish statutes as wel as wise ones, and itis not for the courts to decice which is which and rewrite the former, acknowledge an interpretative doctrine of what the old writers call lpsus lnguae (slip of the tongue), and what our modern «ses cal “serivener’s error,” where onthe very face ofthe stat- tute it is clear to the realer that a mistake of expression (rather than of legislative wisdom) has been made. For example, a stat- tte may say “defendant” when only “criminal defendant” (ie, not “civil defendant”) makes sense The abjetive import of such a statute is clear enough, and T think it not contrary to sound principles of interpretation in such extreme cases, to give uae ou. "do case ha nolan sour sbjt of stator contacon i con- cored, As Protessr Tabs commons sige, Se os at 52, posse (thogh hk far om cata that nr pplication ois he tte ‘ea nconstonaBuhlding proviso unconstitutional quite die tn olin taay what dost contr ou ny ally Seas talfot the inerrettion of ambiguity United Ses ‘ Dabware Hedeon Ca, 213 US 6, 7-08 9b ot 0 re 8 ‘lear one voor x Coca Co. Rows, 289 US. 173 3919. Se Gren Bok Laundry Mach Co, 40 US, 5 (193) 2» the totality of context precedence over a single word. But to say thatthe legislature obviously misspoke is words aeny from faying that the legislature obviously overlegislated. Church of the Holy Trinity is cited to us whenever counsel wants us to ig- hore the narrow, deadening text ofthe statue, and pay atten- tion to the life-giving legislative intent. It is nothing but an invi- tation to judicial lawmaking, “There are more sophisticated routes to judicial lnwmaking than reliance upon unexpressed legislative intent, but they wall not often be found in juiil opinions because they are to0 ob- ‘vious a usurpation, Calling the court's desires “unexpressed legislative infent” makes everything seem all right. You will never, I promise, se in a judicial opinion the rationale for jodie ial lawmaking described in Guido Calabreis book, A Common Law forthe Age of Statutes. I says: [Blecouse a statute is hand to revise once is pase, laws are governing us that would not and could not be enacted today and ome ofthese ws not only could not be reacted but alo do ‘ot ft ae in some sense inconsistent with, our whole egal land scape “There tan alternate way of eating with (this problem of leg absolecence: granting to cours the authority to determine Whether a saute obsolete, whether in one way or another it Should be consciously reviewed, AP tines this doctrine would ap- proach grating to courts he autho to rat tates as if they ‘were no aor and no les han art ofthe common lw Indeed, Judge Calabresi says thatthe courts have already, “in a ‘common law way... come tothe point of exercising [the law revising authority he favors] through fictions, subterfuges, and indirection,” and he is uncertain whether they should continue 2g 2527} concur ‘Guid Cares Cnn aor he Ago Str 2 98D empha “caw,down that road or change course toa more forthright acknow- ‘edgment of what they ae doing “Another modern and forthright approach to according courts the power to revise statutes is set forth in Professor Eskridge’s recent book, Dynantc Statutory Interpretation. The essence of it Js acceptance ofthe propesition that i s proper for the judge ‘who applies a statute t0 consider "not only what the statute means abstractly or even on the basis of legislative history, but also what it ought to mean in terms of the needs and goals of four present day society” The law means what it ought to [agree with Judge Calabrest (and Professor Eskridge makes the same poind that many deeisions can be cited which, by sub- terfuge, accomplish precisely what Calabresi and Eskridge and ‘other honest nontextualists propose. As Ihave sid, “legislative Intent” divorced from text is one of those subterfages; and as | hhave described, Churct ofthe Holy Trnly is one of those cases. What I think i needed, however, i not rationalization of this process ut abandonment of it Ii simply not compatible with ‘democratic theory that laws mean whatever they ought to ‘mean, and that unelected judges decde what that i Ttmay well be that the statutory interpretation adopted by the Court in Church ofthe Holy Trinity produced a desirable result and it may even be though I doube i) that it produced the un- expressed result actually intended by Congress, rather than merely the one desired by the Court. Regardless, the decision ‘was wrong because it failed to follow the text. The text isthe lay and it isthe tox that must be observed. [agree with Justice Holmes's remark, quoted approvingly by Justice Frankfurter in his article on the construction of statutes: “Only a day or two _ago—mnen counsel talked of the intention of a legislature, L was indisreet enough to say I don’t care what their intention was. 2 Willan N. ke J, Dynan Sary nteratio 50(198 (qt sing thr Pp tos Bening net npn Sat 3 ae Raw 6 4699) 2 ‘only want to know what the words mean." And [agree with Folmess other remark, quoted approvingly by Justice Jackson: “We do not inguire what the legislature meant; we ask only ‘what the staute means."* TexTUALISM The hy of is m have described above town as testa sme spt sere simpleminded—"wooden,” “unimaginative” “pees {rian Its none of that, Tobe a textuaist in good standing, one reed nt be too dll to perceive the broader socal purposes that ‘statute is designed, or could be designed, to serve; of too hide- bound to realize that new times require new las. One need only hold the belie that judges have no authority to pursue those broader purposes or write those nev laws. “Textualism should not be confused with so-called strict con- siructionism, a degeaded form of textallsm that brings the ‘whole philosophy into disrepute. lam not a strict construction- jst and no one ought to be—though better that, suppose, than ‘8 nontextualist. A text should not be construed strictly, and it Should not be construed leniently it should be construed rea- ‘sonably, to contain all that i fairly means. The difference be- tween textualiem and strict consructionism can be seen ina ‘ase my Court decided four terms ago.” The statute at issue provided for an increased jail term if, "during and in relation to Tal drug tralficking crime,” the defendant "uses... a fre= arm.” The defendant inthis case had sought to purchase a quan- lity of cocaine; and what he had offered to give in exchange for Fe Frnhre Some Rafts oh Raving of Stats, «7 Clin. ey 27, 538). “Sorver Wendl) Holes, Clete Loe Paper 207 1920), gu sctnvegmann Bro Calvert Dales Corp, 341 US 38,397 C951 Gack sox] concn. ih Unie Sates, 508 U5. 223 (990. 2the coctne was an lode fre, which he showed to the rage The Cour dot sy at te deena ‘oc toe ae yoy bce he ad ne faring ann ation oa ap acing rine” The ‘ote wan nok een ce 62) dsetied: Now Terme ay rhein my een te maj voted te way they Secs hey are seccnstrontculsy beac ty tent eta al Bata prope eta whch fy ty tnd of testa would sry ve vod fo aequt The as “ues gu fay connote ae ofa gun lr wat guns Se normally used for that ave weapon. AS pet he post hy dant when yak screen, "Bo you tara ere” you tre ot inguin wether us hang his anda se ‘cane as a decoration in the hallway. we Dut whl he ond tru spot erste ea nis Word do fave alte range of mening, and no inert at goes yond tha rng permis My favre example of dopa om eta erally hed aretha hs enabled fie oo mow feb baking than ary eter pers to te Dae Pew Cause {ean in the ith snd Fescenh Amendierts ofthe United Sets Contato which sayeth no person shal "be de pried of fe, ber, o propery without de procs ofa” Iho been interpret reve the govern fo ing ‘nay cranes hod thn, sha dam of peek And of lig, ht are special armed inte Conon {te it Supreme Cou se owe te Do Pros Case ‘Me aon wan, by the vay Dt Soot desl pr tntage) Wel ayo ayo be ood fing fo guaran ‘na ier, the De Pee Cue ute Svouy doesnot bear that interpretation By is insapble terme Beare only proce Prope ca be an the ty canbe take, even ie can be tke But ot wien the proce tht our tans rapie—noly, 2 wally eae Dyed Scot . Sadr, 0 US. (9 Hom) 299, 4505, Pn law and a fair til. To say otherwise Isto abandon textual, and to render democratically adopted texts mere springboard for judicial wmaking. ‘OF all the critics leveled against textualism, the most ‘mindless i that tis "formalistic” The answer to that i of ourse i formalist The rule of law is about form. If, for ample, a ‘itizen performs an act—letus say the sale of certain technology to @ foreign country—which is prohibited by a widely publi- ‘ized bill proposed by the administration and passed by both houses of Congress, but not yet signet by the Present, that sale is Taft. I sof no consequence that everyone knows both houses fof Congress and the President wish to prevent that sale. Before the wish becomes a binding law, it must be embodied in a bill ‘that pases both houses and is signed by the Presiden. Is that not formalism? A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbor with a video camera has filmed the crime; and the murderer has con fessed in writing and on videotape. We nonetholss insist that before the state can punish this miscreant, it must conduct full- dress criminal trial that results in a verdict of gully. Is that not formalism? Long live formalism Its what makes a government ‘4 goverment of laws and not of men. ‘CANONS AND FRESUMPTIONS “Testualism soften associated with rules of interpretation called the canons of construction—which have been widely criticized, indeed even mocked, by moder legal commentator. Many of the canons were originally in Latin, and I suppose tat alone i enough to ender them contemptible. One, for eample, i ex- presi us es excusio alterus. Expression ofthe one is exc~ ‘Sion ofthe other What t means is this: Ifyou seea sign that says children under twelve may enter fee, you should have no need to ask whether your thirteen-yearold must pay. The inclsion| ofthe one class is an implicit exclusion ofthe other. Another sfrequently used canon is nostra soci, which means literally, itis known by its companions.” It stands for the principle that 2 word is given meaning by those around it. If you tel me, “L took the boat out on the bay” Tunderstand “bay” to mean one thing ifyou tell me, “I put the saddle on the bay” understand it to mean something ese. Another canon—perhaps represent- ing only a more specific application of the last one-—iscusders ‘ers, which means “ofthe same sort.” It stands forthe prop sition that when a text lists a series of items, a genera term inchuded in the lis should be understood tobe limited to items ‘ofthe same sot For instance if someane speaks of using “tacks, staples, screws, nail, rivets, and other things,” the general term ‘other things” surely refers to other fasteners All ofthis is so commonsensical that, were the canons not couched in Latin, you would find it hard to believe anyone ‘ould criticize them. But in fact, the canons have been atacked ‘asa sham. As Karl Llewellyn put it in a much cited derisive piece inthe 1950 Vanderbilt Lao Revie: “[TThere are two oppos. ‘ng canons on almost every point An arranged selection is ap. pended, Every lawyer must be familar with them all: they are ‘ill needed tools of argument."® Llewellyn appends a list of ‘canons in two columns, the left-hand column headed “Thrust,” and the right-hand column “Parry” Bat i one examines the list it becomes apparent tht there really are not two opposite fanons on “almost every point”—umless one enshrines as a ‘canon whatever vapid statement has ever been made by a will fal, law-bending judge. For example, the frst canon Llewellyn lists under “Thrust.” supported by a citation of Sutherland, is “A statute cannot go beyond its text.” Hooray for that, He shows as a “Pam” with no citation of either Sutherland oF ‘Black (his principal authorities throughout), the fllowing: "To effect its purpose a statute may be implemented beyond its text” That is ot a generally accepted canon, though Iam sure some willful judges have used it—the judges in Church ofthe Kail, Lewin, Remus on he Thay of Apel Deco on he Re or Como tt ow Sates et Be Cinta, an Ren 95, 1990, 2% sayy at es a Resatc eee Spinto emer es isin ir etn ee pace arene tears pe ae ge pee ns Sr eee Sy hha ne nent ee Stace ssc as Slane nemotenss preg ret Setepemtanvenarestor Sahoo insets coeaaretecnen snes iva anak wart tereavine Soa cas = ‘Another aspect of textual interpretation tha merits some discus- son is the use of certain presumptions and rules of construction that load the dice for or againsta particular result For example, when courts construe criminal statutes, they apply—or should apply, or say they apply-—what is knovn asthe “ru of lent” which says that any ambiguity ina criminal statute must be re- Solved in favor of the defendant” There isa rule which says that ambiguities in treaties and statutes dealing with Indian rights are to be resolved in favor of the Indians* And a rule, used to devastating effec in the conservative courts ofthe 19208 and 1990, that statutes in derogation of the common law are to be narrowly construed: And another rule, used to equally © ee Une Ses Bs, D1 S396, 317-4997. Ser Monta Bache Te finde, <7, US 73, 706481985) Ser Rober Rand Co Krill Mach, Corp, 29 US. 27, 8 cos,devastating effect in the iberal courts of more recent years, that “remedial statutes" ae to be liberally construed to achieve theit “purposes There isa rule that waivers of sovereign imam nity are o be narrowly construed.” And a rule that it requires an “unmistakably clear statement” fora federal statute to elimi. ate state sovereign immunity® ‘To the honest textualis all ofthese preferential rues an pre= sumptions area lot of trouble It is hard enough to provide a Luniform, objective answer tothe question Whether a statute, on balance, more reasonably means one thing than another. But it is virtually impossible to expect uniformity and objectivity ‘when there is added, on one or the other side ofthe balance, @ thumb of indeterminate weight. How "narrow" isthe narrow ‘onstruction that certain types of statute are to be accorded; how clear does a broader intent have to be in order to eseape i? Every statute that comes into litigation isto some degree “am biguous"; how ambiguous docs ambiguity have tobe before the rule of lenty or the rule in favor of Indians applies? How im. plausible an implausibility can be justified by the “liberal con Struction” that is supposed to be accorded remedial statutes? ‘And how clear is an “unmistakably lear” statement? There are ‘no answers o these questions, whichis why these artifil rules increase the unpredictability, if not the arbitrariness, of dic dlcisions. Pethaps for some ofthe rules that price is worth it ‘There are worse things than unpredictability and occasional arbitrariness. Perhaps they area fair price to pay for preserva ‘on ofthe principe that one should not beheld criminally liable for an act that is not clearly proscribed; or the principle that fed. cal interference with state sovereign immunity isan extraord nary intrusion But whether these diceoading rules are bad or good, there 2 ee Therein v Knight 299 US. 32.596 (967, For moron my ave sono hpi rl see Antonin Sei, Aner Comedy Cera Lega Anas 0 Cave Wes Re 8,588 (9, 2S Une States Nori Vilage, 8 US. 3, 39-9480, Se Dlmuthw Math 61 US. 25, 201999, 2% fs also the question of where the courts get the authority t im- pose them. Can we rally just decree that we will interpret the laws that Congres passes fo mean less or more than what they fairly say? I doubt I. The rule of lenity is almost as old as the common law itself” so I suppose that is validated by sheer an- tiguity. The others lam more doubtful about The rue that stat- utes in derogation of the common law will be narrowly con- strued seems like a sheer judicial power grab, Some ofthe rules, perhaps, can be considered merely an exaggerated statement of ‘what normal, nothumb-on-the-scales interpretation would pro- duce anyway. For example, since congressional elimination of sate sovereign immunity is such an extraordinary act, one would normally expect it to be explicitly decreed rather than offhandedly implied—so something like a “clear statement” rule is merely normal interpretation. And the same, perhaps, with waiver of sovereign immunity LeoLaTIVe HistoRY {Let me turn now from canons and presumptions, which have long been ned in story constracion, to an nerve tice whose widespread oes elatvly new leilatve story, By which mean te statements made nthe for debate, om te report and even comnts etinonyieding upto the nace ofthe lgaation My view hatte sieve tc fon of the word, rather than the intent of the legate, tt constitutes the aw leas me, ofcourse, othe conlision Sha legate history shuld not be um an athorative "Se Feter Manel wrt tht he ade ack the ne when there wee ofr ane hundred cpl eens under Engl ine cating it own cheryte nan char, ey be ne fort month in the company of [gypsies Sir Peter son Manel, Othe tration 29 (Len ‘on: Wl Masa Son 15S so Unie Stats Wilber, 18 US {8 Wheat 75,9 1820 The rl tt penal as are ob conte ety, ie pra notch iu lh contraction il) 2»indication ofa statute's meaning. This was the traditional En- lish, andthe traditional American, practice. Cle Justice Taney In expounding ths a hedge of te cu a snyder, be nde by he contraction pce pon inn menters of Canes ne dae whch ok he On ts pasage nr by the moter esos sage by se fx spying o ppsng snc twee ore he lel psd th wl ofthe arty ofthe a niyo ni ha wl pene on ha ther ito ete hegunge re tcp ‘en any ambi ext ith he ee upon thse a Sri lckng if een he pb ey fe ine wht p® ‘That uncompromising vw generally preva inthis coun- ty untlthe present century. The movenent fo change ane omentum inthe te 2s an 900 diver, bere ito nt 8 fostaton with common judges ue of Negative i fot and phonidap canons to pos theo wen these days views opposed to Propessive so leglstion t quoted ear an arty Dena ans inven seach Indica usurpation. The sation he proposed was nt the a Sher ffi Inet ab on ere cn, the the we of lglatve history Yo pace rater 10 place ht intent beyond Event ue of egilative history inthis cour dates from abot the 190s 1 as sl Being erin by nach ne ‘pected justices as Frater and Jackson ab cel se "Bit jacson, for expe, wrote none sonsrence "shoul onan ths el nore ely the Cau od rch itby anal ate tnd of by oer of ong When we deci alate Hay ndaig {Aig tne, 4S. Hom) 2485) np ded. “See Landis, supra note 17, at 891-92. = a statements of witnesses at earings, what Congress probably had in mind, we mast put ourselves inthe place of a maj of ‘Congressmen and act acording othe impression we tink his history should have made on then. Never having been a Con sgresman, Iam handicapped in that weed endeavor. That pro- ‘es scems 9 me ot interpretation ofa sate but cretion of & In the past few decades, however, we have developed legal culture in which lawyers routinely—and 1 do mean routinely— ‘make no distinction between word in the text ofa statute and words in is legislative history. My Court i frequently tol, in briefs and in oral argument, that “Congress said thusand-so”— ‘when in fact whats being quoted is not the law promulgated by Congress, nor even any text endorsed by a single house of Con res, but rather the statement ofa single commie of single house se fort in committee report, Resor to legislative his- tory has become so common that Inwyerly wags have popular- {ged a humorous quip inverting the oft-eited (and oft ignored) rule as to when its use i appropriate: “One should consult the text ofthe statute.” the joke goes, “only when the legislative Iistory is ambiguous” Als, that is no longer funny. Reality has cvertakon parody. A few terms ago, I read a brief that beg ‘the legal argument with a discussion of legislative history and then continued (Tam quoting it verbatim): “Unfortunately, the legislative debates are not helpful. Thus, we turn to the other ‘guidepos in this difficult are, statutory language.” ‘As have said, object othe use of legislative history on prin- ‘ple since Leet intent of the legislature as the proper crte- on of the aw. Whats most exasperating about the use of legis Intive history however, is that it does not even make sense for Unie Snes ¥.Pue De Comyn of Cal, 365 US. 28, 319 4859 (eckson concn il for Paioner a2), Jt Dale Indep, Sek Dat, 481 US. 701 (98), ute Gren Bock Laundry Machine Ca, 80 US 404530158) (se Jeonthose who accopt legislative intent as the criterion. It ¢ mich ‘more likely to produce a false or contrived legislative intent thana genuine one. The frst and most abvious reason for this f= tha, with respect to 99.99 perent of the issues of construction reaching the courts, there is no legislative intent, so that any clues provided by the legislative history are bound to be false. ‘Those issues almost invariably inwolve points of relative detail, ‘compared with the major sweep ofthe statute in question. That 12 majority of both houses of Congress (never mind the Presi- dent, if he signed rather than vetoed the bil) entertained any view with regard to such issues is utterly beyond belie. For virtual certainty the majority was bisfully unaware ofthe exi- fence ofthe issue, much fess had any preference as to how it should be resolved. ‘at assuring, contrary to all reality thatthe search for “legis lative intone” is a search for something that exists, that some- thing isnot likely to be found inthe archives of legislative his- tory In earlier days, when Congress had a smaller staff and enacted les legislation, it might have been possible to believe that a significant number of senators or representatives were present forthe flor debate, or read the committee reports, and actually voted on the bass of what they heard or read. Those days if they ever existed, are long gone. The floor is rarely crowded for a debate, the members generally being occupied with committee business and reporting tothe floor only when & ‘quorum call is demanded or a vote isto be taken, And as for committee reports its not even certain thatthe members ofthe Issuing committee: have found time to read them, a= demon “strated by the fllowing Senate floor debate on a tax bil which Thad oceasion to quote in an opinion writen wen Iwas onthe Court of appeals x arson... My question, Which may take [the chsnan of ‘he Committe on Finance by surprise this it the inten tin ofthe chaman thatthe Internal Revenue Service and ‘he Tax Court and other courts take guidance ato the inten 2 ton of Canges om he omit pet wih SP roe ae st would cofiny Rope so wi intranet Preset wither tellme wheter of ox he wt he comito report™| sx sus Di we th comet pon? seamen. UE-GRE Norte soutor fom Kana i ot wie te commit am snc. Di any Senator wre the comes ep? vipa. have t chk Rerun Desh Senator know of ay Sestor who wre ihe commie oper? co Tigh be ale to Ment one, bat I wosk! hve 10 ch Ter helsing the ine was wate ight iad eh carfly ith the tts hey werk ssn ser oh Senator on Kans, “mn ofthe Pane Commits, od th commit init iy? ote wong on tot ably lam wk ingot vo aman: Me President i member ofthe ance Com ite aan he omnis epor? x04 No. —: wi incre. Mi Present th son ase the ee ot ‘etna apparent ont surias ante ust a ‘he mua not conde the Comite on Tina not sub fo amendmee by the Comes ToS; mance is note fo amendment ny the Sete it tee wre ater win hi epor which a ir agiead toy he Senor fm Clad even 2 we Palco re woul be mo wy for so change {Rorpor lel yt ofr on amendment tog amend the commie por ={lor any urs administrator, bureaucrat, tax pte toner or others wiho might chance upon the writes record ‘ofthis proceeding et me jst make the pint tha ths snot the aw, t was ot vote on i not sujet to amendmen, and we should dcipline oumeves othe task of exeensing congressional intent in the saat Ironically, but quite understandably, the more courts have re- lied upon legislative history the less worthy of reliance i hes become, In eartier days, it was atleast genuine and not core {rived —a real pat of the legislation’ history, inthe sens that it was pat ofthe development ofthe bil, part ofthe altempt to in. form and persuade those who voted. Nowadays, Fonerey cours ahr tan norming he Congress cee fe Ir prpon ofthe exc test the oe er lel hor bane ex han at ge oes xs bec he or eer 0 One of he one a th Washngoninwyer yt io dit lng te Bathe por can wena poten er eee ‘even better, insert into a committee report. 7 Thre at several common pone ths cies. One is So whit i most ments of Cong dona hele ‘now iat inthe cries pte Mote eae ee now the details ofthe legato a thera at at none Inia thy ae probly more ely eee nest the cme ep tha fads oes the text Tht non te et pout ttgnane ‘6 pecondton rhe appa auhriavensr aoe rite epor, and nat pronto for the saoratnsy of atte cammitec pt as ncaa ene 2 Cn fe 061 98 Cn. 38 O19 ne in Masta Ey Reply Conn PPPs oe ee 1 Soa es a except on the assumption that it was the basis forthe house's vote and thus represents the house's “inten,” which we (pre= sumably) are searching for. A statute, however, has a lait to ‘our attention simply because Article I, section 7 ofthe Const: tion provides that since i hasbeen passed bythe prescribed ma jority (with or without adequate understanding), Ks la. “Another response simply challenges head-on the proposition that legislative history must reflect congressional. thinking: “Committee reports are not authoritative because the fll house presumably knows and agrees with them, but rather because ‘the full house wants them tobe authoritative—that is, leaves to its committees the details of its legislation.” t may or may not be trac thatthe houses entertain sich a desire; the sentiments of Senator Armstrong quoted earlier suggest tht i isnot. But if it is tm, itis unconstitutional. “All legislative Powers herein ranted,” the Constitution says, “shall be vested in a Congress Of the United States, which shall consist of a Senate and House of Representatives."® The legislative power is the power to make laws, net the power to make legislators. Its nondelega- ble. Congress can no more authorize one committee to “ill n the details” of a particular law in a binding fashion than it can authorize a committee to enact minor laws. Whatever Congress has not self prescribed is loft tobe resolved by the executive or (witimately) the judicial branch. That isthe very essence ofthe separation of powers. The only conceivable basis for consider- {ng committe reports authoritative, therefore, s that they are a {eine indication of the will of the entire house—which, as | hhave been at pains to explain, they assuredly are not T think that Deen Landis, and those whe joined him in the prescription of legislative Rstory as a cure for what he called “willful judges,” would be aghast at the results half century later. On balance it has facitated rather than deterred decisions that are based upon the courts’ policy preferences, rather than neutral principles of law. Since there are no rules as to how‘much weight an element of legislative history is entitled to, it ‘an usually be either relied upon or dismiseed with equal pau sibility. Ifthe willful judge does not like the committee report he will not follow it; he will call the statute not ambiguous ‘enough the committee report too ambiguous, or the legislative history (this is favorite phrase) “as a whole, inconclusive” itis ‘ordinarily very hard to demonstrate that this is false so convine. ingly as to produce embarrassment. To be sure, there are ambi- guities involved, and hence opportunities for judicial will: ness, in other techniques of interpretation as well—the canons ‘of construction, for example, which Dean Landis so thoroughly detested. But the manipulabiltyof legislative history has not re Placed the manipulabilties of these other techniques: it i has ‘augmented them. There are still the canons of construction to play with, and in addition logisative history, Legislative history provides, moreover, a uniquely broad playing fel. In any ‘major piece of legislation, the legislative history is extensive, and there is something for everybody. As Judge Harold Leven, thal used to say, the trick is to look over the heads ofthe crowed and pick out your friends. The variety and specificity of result ‘hat legislative history can achieve is unparalleled "think itis time to call an end toa brie and filed experiment, if not for reasons of principe then for reasons of practicality. 1 hhave not used legislative history to decide a case for I believe, the past nine tems. Frankly that has made very litle difference (since legislative history is ordinanly so inconclusive). Inthe only cae I ocll in which, had I followed legislative history, 1 ‘would have come out the other way, the rest of my colleagues (eho did use legislative history didnot come out the other way either # The most immediate and tangible change the abandon. ment of legislative history would eect is this Judges, lawyers ‘and liens will be saved an enormous amount of time and er, pense. When I was head of the Office of Legal Counsel inthe {5 Worn Plc Inervenr¥ Motes 5 1S, 597 et 66 (sca conang % ofthe time of the Justice Departmen, estimated that 60 percent ofthe Taseyers on my staff was expended finding, and poring over, the Incunabula of legislative history. What a waste, We did not use todo it, and we should doit no more. INTERPRETING CONSTITUTIONAL TEXIS retenng to ave exe the vst top fet Inerpetaion Tw to adds ol set the ince rot of contiatione! interpretation. The pele dtp tive, not because special principles of interpretation apply, but ‘because the usual principles are being applied to an unusual ‘Set Chie fac Maal pu the po wel a iean De ot ie Mech Maryan Acoma ocean en scl al en ‘of which its great powers wil admit, and of all the means Which they may be cased into execution, would partake ofthe prolsty ofa legal code, and could sary be embraced by the human mind. would probably never be understood by the pab> ies nature, therefor, require, that only as great outlines should be make, its imporant cbjets designated, and the ‘minor ingredients which compose those objects Be deduced from the nature ofthe objec themselves” tn textual inerpetaton, conti everthing andthe oniet (the Contin ele oto expec tpg deta and to gve words and pases a expansive rer han aro tepeation though not an irprettion that the language vet bes “Tae fer eample the provision ofthe ist Amendment at fori sbrgyent ofthe ecm of speech oro the pret” ‘hat poe don not tnt the fl ange of communative © Meech» Maryan, 17 US (4 Wheat) 316,417 (189 2‘expression, Mandiwritten letters, for example, are nether speech nor pres. Yet surely there is no coubt they cannot be cemeoned, In this constitutional context, speech and press, the two most ‘common forms of communication, stand as a sort of syneedoche for the whole. That isnot strict construction, but itis resonable construction, It's curious that most of those who insist thet the drafter’s inten gives meaning toa statute reject the drafer’s intent asthe “titerion for interpretation of the Constitution. I eject it for both. I will consult the writings of some men who happened to be delegates to the Constitutional Convention Hamilton's and Madison's writings in The Federalist, for example. Ido 30, how «ever, not because they were Framers ad therefore their inten fs authoritative and must be the law ut rather because thelr writ {ngs like those of other intelligent and informed people ofthe time, display how the text of the Constitution was originally understood. Thus I give equal weight to Jay's pleces in The Fe. «alist, and to Jelferson’s writings, even though neither of them was a Framer, What I look for in the Constitution is precisely ‘what I lok for in a statute: the original meaning of the text, not What the original daftemen intended Bat the Great Divide with regard to constitutional interpeet- tion isnot that between Framers intent and objective meaning, but rather that between orignal meaning (whether derived frog, Framers’ intent or not) and current meaning. The ascendant ‘school of constitutional interpretation affirms the existence of ‘what is called The Living Constitution, a body of law that (ane like normal statutes) grows and changes from age to age, in ‘onler to meet the necds of a changing society. And itis the judges who determine those needs and “find” that changing law. Seems familiar, doesn’t i Yes, itis the common lave tured, but infinitely more powerful than what the old common law ever pretended tobe, for now it tramps even the sates of democratic legislatures. Recall the words quoted earlier from the FourthoF July speech of the avid codifer Robert Rantoul 8 aoe cords aint recente ao eo oe gaa Teirouncranesen Su acre Septet ee eet ee eee eer cena ontetmeacemen ars scalsentte eaten eee ces See menace wegen dere reece aes ee aoe eee ate nO econ eee rs ee ce eereee ecco mei ae ohh ease calenpereeprereim Pees eras ee eae oecants cece tc eae cater bend tigen packrintor eee eset Seas eee aeb eee eee cas “Raa ap note 7 318 ‘ye Cuzan Dirt, Mo. Dep of Health 497 US. 21,279 059. ‘Sele Kier, 6 N28 324,559), dei 18S Ch, 259 09. »Yesterday it does not necessarily mesn today. As our opinions Say in the context of our Highth Amendment jurisprudence (the CCrucl and Unusual Punishments Clause), ts meaning changes to reflect “the evolving standards of decency that mark the progress ofa maturing society." This is preeminently a common-law way of making lw, and not the way of construing a democraticelly adopted text I men- tioned earlier a famous English teatie on statutory construc: tion called Duarrs on Statutes. The fourth of Dvvarris's Maxims was as fllaws: “An act of Partiament cannot alter by reson of time; but the common lw may, sce ceseantertione costly" ‘This remains (however much it may sometimes be evaded) the formally enunciated role for statutory construction: statutes {do not change. Proposals for “dynamic statutory construction,” such as those of Judge Calabrest and Profesor Eskridge, are concededly avantgarde. The Constitution, hovever, ever ‘though a democratically adopted tex, we formally teat Uke the common law. What, it is fair to ask, i the justification for doing 50? ‘One would suppose thatthe rule that atest doesnot change ‘would apply a fortior’ toa constitution If courts felt too much bound by the democratic proces to tinker with statutes, wher their tinkering could be adjusted by the legislature, how much ‘more should they feel bound not to tinker with a conetiction, ‘when thee tinkering is vrtwlly irreparable, It certainly cannot be said that a constitution naturally suggests changeablity to ‘the contrary, its whole purpose isto prevent change—to embed ceriain rights in such 2 manner that future generations cannot readily take them away. A society that adopt abil of rights is skeptical that “evolving standards of decency” always "mark progress,” and that societies always “mature,” as opposed to Rhodes Chapman 452 US 37,46 19, ing fam Trp: Due ng, 386 US. 86, 98 aly opinion ‘ara Dae A Gent tio Slt, th Arn Nae and ony Plt Ptr 12 (Abang, 17). © the intent ofits rot, Neither the fext of such @ document nor the inten Tamers (whichever you choose) can possibly lead tothe contr ‘om that its only effect sto take the power of changing rights way from the legislature and give i to the cours -EXIBLTY AND LIBERALITY OF “THE LIVING CONSTITUTION «agument mos equi made fm aor of The Lng EEAteisspeema one Sch a evolutionary pon ctor cero grote "text" ue aneng SSSR hc caruttn would hve spp a Sey OF pnd and rom Ths might bea Pe Treo ring that he ropes of see Set heve troup ue the ps andar ee spon te toy, wee een of cae ee Femoral: pve at jhe poste Sa a prey ne pa ary Yas eS sing” Conan tas imposed vst aay of new ee inteee pon mantel sai actn, To menon oy af tng that re fc oot anesthe sot esl bao comet be done + admiting ina sae criminal tral evidence of guilt hat was ob- tained by an unk search® i « periving invocation of Goat publicschool graduations “Ekcting one ofthe two houses of sate legislate the way the ‘ne Sates Senate selected om a basistat does ot pve all yters muercally ual representation’ -teraiating welfare payments 38 soon as evidence of fraud is © se Mapp» Oh, 47 US. 8.086, Selec oman S05 US.577 097 1 Se Ryne vss 37 US. 50.60.-ecived, subject fo msoration after heting if the evidence is sovsactoriy refuted imposing property requirements a a condition of voting” * prohibiting anonymous campaign Itersture* "prohibiting pormograpty™ And the future agenda of constitutional evolutionists is mostly more ofthe same—the creation of new restrictions upon deme. ‘atic government, rather than the elimination of old ones. Lese Aexbity in government, not more. As things now sand, the state and federal governments may either apply capital punish ment or abolish it permit suicide or forbid it=all asthe change ‘ng times and the changing sentiments of society may demand. Bat when capital punishment is held t0 violate the Eighth Amendment, and suicide is held to be protected by the Four. teenth Amendment, al flexibility with regard to those matters will be gone. No, the realty ofthe matter is that, generally speaking, devotees of The Living Constitution do not seek to faciitate social change but to prevent it ‘There are, | must admit a few exceptions fo that—a few in- stances in which, historically, greater flexibility hasbeen the tes sul ofthe process. But those exceptions serve only to refute an ‘other argument of the proponents of an evolving Constitution that evolution will always bein the direction of greater personal liberty. (They consider that a grest advantage, for reasons that | do not entirely understand. All goverment represents bel- ance between individual freedom and socal one, and its not true that every alteration of that balance in the direction of ‘restr individual freedom is necessarily good) But in any ese, 2S Gates Katy. 27 US. 28470 2S Kramer Unon Fw Sh Bt 395 US 616, * SMe «Oho Beton Como 58°C O95 Under caret doce, progaphy may be ase oy ee ‘ne a Calfomin 3 U1 Ss ual tet toe {thts ot ence mir ht exces “moa ely ae rocket pane Any Ins 2S ime the record of history refutes the proposition thatthe evolving Constitution will invariably enlarge individual rights. The most ‘obvious refutation is the modern Cout’s Limitation ofthe coo stitutional protections afforded to property: The provision pro- Inibiting impairment of the obligation of contracts, for example, has been gutta. Iam sure that We the People agree with that development; we value property rights less than the Founders did. So also, we value the right to bear arms less than did the Founders (who thought the right of selflefenee to be absolutely fundamentaD, and there willbe few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard. But this just shovrs that the Founders ‘were right when they feared that some (in their view mis- {8ided) future generation might wish to abandon liberties that they considered essential, and so sought to protect those liber ties ina Bil of Rights. We may lite the abridgment of property rights and lite the elimination ofthe right to bear arms; but et tus not pretend that these are not reductions of rights. ‘Or if property rights are too cold to arouse enthusiasm, and {he right to bear arm too dangerous, let me give another examn- ple: Several terms ago a case came before the Supreme Court involving a prosecution for sexusl abuse of a young child, The {rial court found that the child would be to frightened to testify {nthe presence ofthe (presumed) abuser, and so, pursuant 0 state law, she was permitted to testify with only the prosecutor and defense counsel present, with the defendant, the judge, and the jury watching over closed-circuit television, A reasonable ‘enough procedure, and it was held to be constitutional by my Court T dissented, because the Sixth Amendment provides that “Tin all criminal prosecutions the accused shall enjoy the right... tobe confronted with the witnesses against him (em phasis added). There is no doubt what confrontation meant—or ‘Indeed means today. It means face-to-face, not watching from Se Home Bang Loan Aan Bil 20 US 3660590 ‘Se Marland v Cig 7 US 36990‘nother room. And there is no doubt what one ofthe major pur Poses of that provision was: to induce prccly that precore ‘upon the witness which te ite girl found it dificult trends It's dificult to accuse someone to his face, particularly when You are lying, Now no extrinsic factors have changed since thot Brovision was adopted in 1791, Sexual abuse existed then oe it does now lite children were more easly upset than adults then as nova means of placing the defendant out of sight of the witness existed then as now (a screen could easily have bore ‘rected that would enable the defendant to see the witness, bot not the witness the defendand. But the Sixth Amendment none {eless gave al criminal defendants the right to confront the wit, ‘Resor against them, because that was thought fo be an impor. {ant protection. The only significant things that ha changed 1 think, are the society's sensitivity to so-alledpaychic teem re that assures convicting 100 percent of all chill abuser and 8 procedure that assures acquitng 100 percent of those faely ‘accused of chil abuse. I have no doubt that the society is se 2 whole, happy and pleased with what my Court decided. But we ‘should not pretend thatthe decison ei not elimina bert that previously existed {LACK OF A GUIDING PRINCIPLE FOR EVOLUTION ‘My pointing out thatthe American people may be satisted with a reduction oftheir liberties should not be taken asa suggestion thatthe proponents of The Living Constitution follow the eines of the American people in determining how the Constitution should evolve, They follow nothing so precise, indesd, wn group they follow nothing at all Pethaps the most glaring det fect of Living Constitutionaism, next ots incompatolity ith the whole antievolutionary purpose of a constitution, 1 that “ ther is no agreement and no chance of agreement upon what is tobe the puiing pina of he evolution ans sa nts sullen normative pincple of consitunal interpret ton What isi that he age mt conat to deterne he, and in what isto, elton hes occured? lt he wl of the majrity, discard rom newspeper rad talk shone pulblicopinin pol and cht a th country cab? ni the pa Irsophy of mee of ohn Raw, or of on Sar Mil of Arial? As Soon a the discon goes beyond the ose of ‘wheter the Constitution stati the evant vee &% many campe a thre ae india views of he goed, the tra andl the Bet think tha is inevitably so, whieh mean that evolationism is simply not a praciabe conttonal philosophy. Td not suet mind you, that crigaiss aways ace ‘pon ther answer. Theres plenty of room for diagecntt 18 what original meaning was and even mre asf howe at riginl meaning applies the station Store the cour, Bat the orgalis at fast knows what hes ooking forthe original mening ofthe text Often inde, are a ually ey to discem and simple to apply. Sometimes (hough hot ‘very ofe) there wil be disgrerment parang the egal ‘meaning and sometines ther wil be dsagreement sto howe that orginal meaning apes to new and unorson pheno ena. How, fr example, does the Fist Amendment state of “the freedom of peeh” apply to new tecnologia Dil ot exist when the guarante was crested—fo sou tuk Oo fovernmentlcersed overheat tlevision? In such new ds Eh cont ma ioe te neo to speak to determine whit egure—and acurely tat terrise isnot ently catend-r but require he curse of PFE ick and ween of dtr gn ‘ening and applying it modern ccumsances a neg be compared wih the cule and unceaes ofthe pe losophy which Sys tha the Consitton changes hat the ery 6act which it once prohibited it now permits, and which it once permitted it now forbids; and thatthe key to that change is une known and unknowable. The originals, if he does not have all the answers, has many of them. The Confrontation Claus, for example, requires confrontation. For the evolutionist, om the ‘other hand, every question isan open question, every day a new day, No fewer than three of the Justices with whom I have served have maintained that the death penalty is unconstitu- tional eoen though its use is explicitly contemplated in the Con- stitution. The Due Process Clause of the Fith and Fourteenth ‘Amendments says that no person shall be deprived of life with= ‘out due process of law; and the Grand Jury Clause ofthe Fifth ‘Amendment says that no person shall beheld to answer fora ‘capital crime without grand jury indictment. No matter. Under ‘The Living Constitution the death penalty may have become un constitutional. And i is up to each Justice to decide for himself (under no standard I ean discer) when that occurs. In the last analysis, however, it probably dose not matter ‘what principle, among the innumerable posites, the evolu- Lionst proposes to determine in what diretion The Living Con stitution will grow. Whatever he might propose, atthe end of the day an evolving constitution will evolve the way the major- ‘ty wishes. The people will be willing to lave interpretation of the Constitution to layers and law courts so long asthe people believe that i is (ike the interpretation of state) essentially lawyers’ work—requiring a close examination of text, history of the text, traditional understanding of the text, judicial prece- dent, and so forth. Bu if the people come to believe that the ‘Constitution is nota text ike ether texts; that it means, not what it says or what it was understood to mesn, but what it should ‘mean in light of the “evolving standards of decency that mark the progress of a maturing society"—well then, they will ook Se Gragg Georg 425 US. 15, 27 (176 (ren meting i 23 (Marsal Js esting Cli Colin, 1148 Ch 12,1388) (Bucket om dni of cet) « for qualifications other than impartiality, judgment, and aw yerly acumen in those whom they select to interpret it. More Specifically they will look for judges who agree with them as 0 ‘what the evolving standards have evolved to; who agree with then a8 to what the Constitution ought to be. Tt seems to me that that i where we are heading, or perhaps leven where we have arrived. Seventy-five years ago, we Be leved firmly enough in a rock-solid, unchanging, Constitution ‘that we felt necessary to adopt the Nineteenth Amendment to sive women the vote. The battle was not fought in the cours, ‘and few thought that it could be, despite the constitutional guat- lantee of Equal Protection ofthe Laws; that provision didnot, When it was adopted, and hence did not in 1920, guarantee ‘equal access to the ballot but permitted distinctions onthe basis not only of age but of property and af sox. Who can doubs that Af the issue had been deferred until today, the Constitution ‘would be (formally) unamended, and the courts would be the chosen instrumentality of change? The American people have been converted to belief in The Living Constitution, a “morph- ing” document that means, from age to age, what It ought to ‘mean. And with that conversion has inevitably come the new ‘phenomenon of selecting and confirming federal judges, at all levels, om the basis of their views regarding a whole series of ‘proposals for constitutional evolution. If the courts are fee to ‘write the Constitution anew, they will by God, writ it the way the majority wens; the appointment and confirmation will see to that. This, of course, i the end of the Bil of Rights, Whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the CConstittion do everything that needs doing from age to age, swe shall ave caused it to do nothing at al. ”