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January 17, 2007

Florida Decision Contrasting Logical and Illogical Textualism

Fellow gets addicted to pain pills and so writes some fake prescriptions for himself.  He gets convicted, not just of forgery, but of "drug trafficking" and so is sentenced to 25 years (not a typo) in prison.  He brings an 8th Amendment (and analogous state constitutional law claim).  One issue is whether this is really "drug trafficking" or not. Majority says it is.  Dissent raises some wonderful arguments about literalism, pointing out that under the majority's approach four hypothets are "drug trafficking" in Florida.  The case is here.  Great read.  (Isn't that what Rush Limbaugh did, and all he got was some slap on the wrist?)  Here's one of the hypos:

A high school principal discovers on school grounds a cache of thirty packets of what he knows from experience to be cocaine, each packet containing one gram of cocaine. He takes possession of it, locks it in his desk until he can turn it over to the police, and informs his secretary of his intentions. An emergency calls him away and he forgets to call the police. Sixty days later his secretary discovers the cocaine is still there and reports it to a school resource officer.

January 17, 2007 in Current Affairs | Permalink


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Is this really a case of "illogical textualism"? No one seems to doubt that the statute means what it says; possession gets you in deep trouble. the issue is whether that the punishment fits the crime (i.e. is constitutionally disproportional), not whether the conduct fits within the terms of the statute. the dissent recognizes that a "howitzer" has been given to the executive with the authority to use on a "squirrel." whether you read the statute textually or purposively, it is a "howitzer."

the dissent states that is the executive branch that acted odiously (and i agree). but the dissent does not argue that the statute does not say what it means, or that, if read "purposively," that the defendant would not fall within the statutes terms, but just that, if the executive is going to throw this guy in jail, then the court should step in and hold the punishment unconstitutional. this case doesn't strike me as an attack on "literalism" (whatever that means), but instead as an attack on the executive.

Posted by: andy | Jan 17, 2007 8:50:26 AM

I think the dissent's point is that it can'be taken literally, or you end up with illogical results. Don't you think that's the point of his (her?) four hypos?

Posted by: David Hricik | Jan 17, 2007 10:10:51 AM

You're right...I suppose I should have just emphasized that textualism does not mean the same thing as literalism, as the dissent acknowledges in distinguishing between logical textualism and illogical textualism.

but i think most of his scorn is reserved for the executive branch for enforcing this statute in the instant case and for the majority for not declaring the statute unconstitutional. you're definitely right that the "Dissent raises some wonderful arguments about literalism," but the dissenter is setting up a straw man-- *of course* illogical textualism should be rejected, just as everyone should refute illogical purposivism, and everyone should refute illogical intentionalism; they are, after all, "illogical." his outrage doesn't seem directed towards methods of statutory interpretation so much as towards the executive's decision to prosecute and the court's failure to apply the cruel and unusual punishment provisions.

Hopefully the legislature picks up on this and amends the statute retroactively. The facts of this case strike me as quite depressing, and I cannot believe that a person who became addicted to drugs due to an accident must spend the next 25 years in jail, even though he was not giving those drugs to others. I think this case does demonstrate that there is something seriously wrong in Florida, but my blame lies with the executive and the court, and not with one particular form of statutory interpretation or another. if i were convinced that it was textualism that caused this sad result, i would abandon that interpretive approach altogether.

Posted by: andy | Jan 17, 2007 12:07:26 PM

I agree that the fact that they're seeking this penalty seems... nuts, and that it was *affirmed* is even nuttier. I hope for this fellow's sake that the Florida Supreme Court takes note of it and does something more thoughtful.

But, what allows a textualist to say that a construction is "wrong" or "illogical"? That seems pretty subjective, and so allows for (perhaps requires?) consideration of purpose and intent...?

Posted by: David Hricik | Jan 17, 2007 3:34:42 PM

""wrong" or "illogical"? That seems pretty subjective, and so allows for (perhaps requires?) consideration of purpose and intent...?"

I'm all for using purpose and intent, but just an objectified version, rather than a subjective version.

I don't doubt that textualist judges are exercising, god forbid, judgment, and no matter what approach you use, you must be relying on some type of fiction or another (i.e. there is an element of subjectivity no matter what approach you use); I just think the textualist fictions serve better values than the purposivist's fictions.

Posted by: andy | Jan 17, 2007 9:46:05 PM

That's interesting; after reading way too much in this area, I became convinced that textualism is unmoored to anything and is quite an activist doctrine. I declare the meaning "plain" and I'm done, without anchoring it to anything other than my choice of a dictionary or my choice of what is "plain" when others obviously disagree.

Posted by: David Hricik | Jan 20, 2007 6:13:35 AM

"I became convinced that textualism is unmoored to anything and is quite an activist doctrine. "

I find that somewhat surprising, given that you suggested in a prior post that those who see deceit in others are simply externalizing their own perceptions.

I don't have such a hard time believing that judges (whether they employ Stevens' purposivism or Scalia's textualism) are largely acting honestly. Most of the substantive issues decided by appellate courts seem so unbelievably dull that it'd be rather strange to bend over backwards to declare a "plain meaning."

I suppose I have no trouble believing that judges can apply textualism honestly because, though I can't read others minds, I know that *I* apply textualism honestly. Matters of social policy tend to bore me and the ultimate disposition of a statutory case rarely interests me. I'm obsessed with legal process and methods of interpretation, and thus I do not have a hard time believing that judges may be similarly geeky and care more about style than substance.

Perhaps this is due to my focus on the tax field-- it is simply impossible for any normal human being to have any strong feelings on how, for example, earnings repatriated from a foreign branch denominated in a foreign currency "should" be treated under 26 USC 987. I'm toying with writing an article on that provision, and do believe that the Treasury's Proposed Regulations go beyond the statute. I honestly have no opinion whether those regulations are "good" or "bad," and the policy decision embodied in those regulations neither comports with nor departs from my own preferences; i honestly just do not care about the "right" treatment of repatriated earnings. Further, the policy decision is extraordinarly complex and I am perhaps too lazy to figure out the "right" result or to even form an opinion.

I do care very much, however, about applying the statute's plain meaning and am bothered when regulations go beyond that plain meaning (even if i could not care less about the substance of that meaning). It doesn't strike me as odd that others might feel similarly.

Perhaps you are right that in socially-charged cases, judges may ascribe a "plain meaning" to cloak their own policy preferences, but it seems rather cynical to think that an interpretive philosophy is necessarily "activist." Read Gitlitz v. Commissioner (a 2001 SCOTUS case), in which 8 Justices accorded a statutory provision its "plain meaning," even though it caused much dismay about the tax cognescenti. After reading that case, do you really think that the judges were really just masking their true preferences regarding the treatment of debt discharges on the tax attributes of stock held in S corporations? You won't be able to convince me that "plain meaning" was used as an "activist" doctrine there, because I simply won't accept that Justice Thomas had a secret agenda regarding the tax attributes of S corporations when he wrote the opinion; no sane person actually cares about these things.

Posted by: andy | Jan 20, 2007 10:26:37 PM

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