August 12, 2006
Authoritarianism & Statutory Construction
It's a Saturday morning, and last night (while enduring a flight back from Rhode Island to Atlanta during the latest scare), I bought John Dean's Book, Conservatives without Conscience. (Sadly, I now see that I could have waited and bought it for nearly half the price charged at the airport!)
I haven't finished it yet, but began last night to read the section where, Dean states, conservatives are attempting to pack the judiciary with judges who will use their power to impose the conservative agenda that they were unable to get through, even with an all Republican Congress and President.
I don't know that he's right, but let's assume for a moment he is. Does Textualism allow for that to happen more easily than, say, intentionalism? Seems to me the answer is "yes" because the judge can without explanation announce the "plain meaning" of the statute, even if it conflicts with clear legislative intent. The inertia of the legislative process will, then, mean that a more conservative statute than was enacted is in place, and won't be overturned easily.
I don't know, but it got me thinking about those broader issues on this fine Sunday morning.
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Tough call. I think textualism generally leads to more ambiguity than so-called "purposivism," as, in the face of an ambiguous text, the judge will have to exercise (god forbid) judgment, rather than simply search for whatever piece of legislative history is authoritative. thus, i get the impression that the textual approach leads to more ambiguity than purposivist approaches.
however, if someone is trying to advance a conservative (or liberal) agenda, it seems unwise to ignore legislative history. whatever one's agenda, it seems easier to pick out supporting materials from leg history and dress those materials up as "Congress's intent" in coming to one's conclusion, and thus much easier to support one's holding. the textualist approach at least requires one to stick to the text.
i do not think i can agree with your assertion that a "judge can without explanation announce the "plain meaning" of the statute," and then say whatever he wants. that approach seems to make a mockery of the science of statutory interpretation. i would hope that most judges (on either side of the aisle) are above that. i suppose that words are often malleable enough that one *can* ignore the text (or ignore the legislative history), but i'd prefer to think that most judges have more self-respect than that. perhaps i'm naive, but i'm crossing my fingers that i'm right.
Posted by: andy | Aug 13, 2006 4:37:31 AM
Interesting comments. There's of course a lot going on in these few words, and probably some ambiguities of our own. It seems to me, though, that textualism allows a judge to rely on "plain meaning" -- dictionary definitions, for example -- when the legislative history could, unambiguously in theory, show that the "plain meaning" was not the "intended meaning." Further to the point, I believe that there is, in large measure, science to what interpretation is about (linguistics), and that at the core that science and the text will lead do the "intended" AND "plain" meaning, because most often they are the same.
But, at the margins, I think language is vague, ambiguous, or both. At those margins, honest reliance on legislative history should be a useful and good thing. It bothers me, and feels a bit like usurpation of power, for a judge to say, "at the margins of language, I know, and yet I can't be trusted to look honestly at legislative history, because I'll cherry pick words to support my view." There's both an inherent tension between the "plain meaning exists and you can trust me to discern it, even at the margins" and the "judges can't be trusted to use legislative history honestly" part of that philosophy. I think that a judge, when dealing in areas where language begins to fail, ought to be required to do more than say, "trust me, this is the plain language" and should be required to, and can, intellectually honestly look at what the intent behind the language was. Absent that restraint, I beleive there could be more freedom to "legislate from the bench."
Posted by: David Hricik | Aug 15, 2006 7:01:18 PM
"that textualism allows a judge to rely on 'plain meaning' -- dictionary definitions, for example -- when the legislative history could, unambiguously in theory, show that the 'plain meaning' was not the "intended meaning."
I agree that legislative history can very well show that the "plain meaning" is different from the "intended meaning." however, (as a textualist), i could not possibly care less what the "intended meaning" was. to borrow holmes's aphorism, "we ask what the statute means, not what the legislature intended."
of course, scalia often argues that legislative history materials often fall on deaf ears, and that congressman don't actually read reports or listen to debates. but that's really only half the point, and i think he makes observations to point out the inherent silliness of assuming that a floor statement is relied upon by the voting members of congress. more salient, i think, is the argument that those materials are per se irrelevant. the constitution grants legislative power to the legislature, not to legislators; congressmen as individuals have absolutely no lawmaking authority whatsoever under the constitution. thus, even if you showed me that a bill sponor unambiguously meant "A" in a statute that says "B," i would not care.
now, if someone *does* pay heed to what a bill sponsor thinks, then of course legislative history materials are relevant. but, to respond to your criticism of textualism, it is worth noting that most textualists do not deny that legislative history materials could possibly reflect subjective intent-- they (we) just believe that such subjective intent is wholly irrelevant.
"It bothers me, and feels a bit like usurpation of power, for a judge to say, 'at the margins of language, I know, and yet I can't be trusted to look honestly at legislative history, because I'll cherry pick words to support my view.'"
i agree with half of this. i do not think that judges, for the most part, are evil persons who will handily pick whatever legislative history materials suits their dispositions in reaching their holdings, though there are undoubtedly cases in which that is done.
however, i cannot agree with the "usurpation of power" argument. if anything, insisting on the use of legislative history materials strikes me as the "usurpation," not the denial of the use of such materials. the constitution grants the "judicial" power to the courts-- the courts are undoubtedly vested with a power to interpret statutes.
Individual legislators (or individual committees) have absolutely no legislative or judicial power under the constitution. if committees insist that their interprations bind judges, then it is the committees which have usurped the judicial power.
what i find offensive and demeaning to the judiciary is the suggestion that judges must somehow obey statements in a statute's legislative history. i understand why scalia is insulted that people suggest that the power granted to his court must yield to a house committee.
of course, i recognize that the "purposivists" do not say that a committee report represents solely the view of a committee, but is instead the view of the whole congress, and there is no question that courts must obey congress. however, i simply cannot accept that a single floor statement or committee report is an authorititative expression of congressional intent. if one does accept this proposition, then my objection cannot stand.
in my view, the reason that the judiciary is subordinate to the legislature (and must heed Congress's commands) is that statutes are enacted under a rigorous process requiring bicameral approval and the signature of the president. nothing in the constitution suggests to me that the framers wanted to vest lawmaking powers in individual congressmen, or anticipated that such congressmen would be particularly brilliant. i cannot think of any good reason to favor the views of a congressional committee (by reason of its affiliation with congress) over any other view. if i were a judge, i would happily look at legislative history materials, and judge them according to their pursuasiveness-- however, in no case would i accord them any authoritative weight. suggesting that i must observe the views of a single congressman strikes me as offensive-- i do not care what he "intended," or even what all 500 or so "intended." unless they subject their views to the lawmaking procedures, they are not relevant. e.g. Aldridge v. Williams, 44 U.S. 9, 24 (1844) (“If every member of the legislature had preferred that the regulations under the act of 1832 should not have been sanctioned by that of 1833, it would not have been effective to repeal the act of 1832, unless they had expressed their wish in a legislative form.”)
Posted by: andy | Aug 16, 2006 11:23:03 PM
I think where we part ways is early, and fundamental: that text can have a meaning that is plain, and that it is best discerned by judges without considering the legislative context and discussion that led to the text.
To me, it doesn't make sense to ask what the language means, not what the legislature intended, because the language's meaning must be read in the context of its usage. It gives a judge unbridled judicial power if he can decide what a word means without considering context, particularly where, in the case of textualist judges, they simply say "the meaning is plain" and then rely on dictionaries, canons of construction, or other unmoored vehicles to reach that meaning.
You've made me ponder, though, exactly the debate and I think you've stated some of textualism's positions better than the judges have. One thing that you've made me ponder, and it's an interesting twist here, is that legislatures often enact statutory directives on interpretation that require courts to consider legislative history (purpose, and so on) in interpreting statutes. I'd thought of that trend (well, there's half a dozen of them) as an indictment of textualism; I suppose you'd say it's actually a power grab by legislators and committees?
I'm not ignoring your other comments, but have to teach shortly!
Posted by: David Hricik | Aug 17, 2006 2:20:43 AM
"To me, it doesn't make sense to ask what the language means, not what the legislature intended, because the language's meaning must be read in the context of its usage. It gives a judge unbridled judicial power if he can decide what a word means without considering context, particularly where, in the case of textualist judges, they simply say "the meaning is plain" and then rely on dictionaries, canons of construction, or other unmoored vehicles to reach that meaning."
Okay, i am going to chime in one more time, notwithstanding yoru teaching responsibilities, but i am going to a friend's wedding tomorrow, and promise not to besiege you with any more theories for several days.
i agree with you taht context is absolutely paramount. however, *whose* context? you suggest that examining the context that the legislature enacted the bill in is the relevant context. fair enough.
i prefer to examine the language by reference to a different context-- the context that the *beneficiaries* of such language are understood to have interpreted such language in. legislative history materials do represent the context that legislators understood a bill in, undoubtedly. however, powers vested in the legislature are to be exercised in favor of the people. cf. U.S. Const., Preamble. Thus, i am inclined to examine the meaning of the words in the context that an ordinary, reasonable person (i.e. an objective member of the public/people) would understand them.
i agree with you that this is the major fork in the road between those who wish to use legislative history and those who do not. both sides agree that context is important. but which context? i think that dictionaries and the surrounding statutes are relevant-- these are the materials that a member of the public would have understood the materials.
if the focus is not on the public but on the legislators, then, of course, one must include the legislative history.
i cannot say for certain which produces the better result-- for all i know, consistently using legislative history may very well increase the overall utility in society. i do, however, feel guided by the principle that texts should be interpreted in the context that the people would understand them, and not the legislators. (query whether legislative history materials can represent the context in which both the legislators and the people understand statutory language?)
"they simply say "the meaning is plain" and then rely on dictionaries, canons of construction, or other unmoored vehicles to reach that meaning."
if a judge is using the 'plain meaning' rule to subvert the judicial process or to pursue his own agenda, that would go beyond any of my arguments. i would hpoe that all would agree that such a judge should be publicly tarred and feathered.
Posted by: andy | Aug 17, 2006 2:56:33 AM