The Rule of Law – Part 4
The only democratic way to interpret law in a democracy.
Continuing this series of essays on the rule of law, this essay will focus on the only legitimately democratic way to interpret law in a democracy, namely determining the original meaning of the words of the legal text as those words would have been generally understood by the people at the time of the law's enactment.
Dictators impose whatever rules they want, regardless of legal texts. And judges also impose whatever rules they want as well whenever they don’t hold themselves bound by the original meaning of the words found in legal texts. A great explanation of what’s being got at here can be found in former Supreme Court Justice Antonin Scalia’s book A Matter of Interpretation: Federal Courts and the Law.
Scalia writes:
The Following essay attempts to explain the current neglected state of the science of construing legal texts, and offers a few suggestions for improvement. It is addressed not just to lawyers but to all thoughtful Americans who share our national obsession with the law.
Scalia starts by stating that the governmental principle of separation of powers
is praised, as the cornerstone of the proposed federal Constitution, in The Federalist No. 47. Consider the compatibility of what Madison says in that number with the ancient system of lawmaking by judges. Madison quotes Montesquieu (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 legislator.”
What does it mean for “judging to be joined with the legislative”? When “judging is joined with the legislative,” judges hand down their own rules for people to follow, rather than the rules (the text of the law) as understood by the duly-elected representatives of the people who actually have the authority to enact the laws, and the people themselves.
As Scalia writes:
Every issue of law resolved by a federal judge involves interpretation of text— the text of a regulation, or of a statute, or of the Constitution … [W]e do not really look for subjective legislative intent. We look for a sort of “objectified” intent— the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris. And the reason we adopt this objectified version is, I think, that it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated … Government by unexpressed intent is similarly tyrannical. It is the law that governs, not the intent of the lawgiver … That seems to me the essence of the famous American ideal set forth in the Massachusetts 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 us … Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former … It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.
The text, and not its author or authors, is what’s important, because it’s the text, and not its author or authors, that is in the statute books:
The text is the law, and it is the text that must be observed. I 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— when counsel talked of the intention of a legislature, I was indiscreet enough to say I don’t care what their intention was. I only want to know what the words mean.” And I agree with Holmes’s other remark, quoted approvingly by Justice Jackson: “We do not inquire what the legislature meant; we ask only what the statute means.”
Scalia explains that this sole democratic means of legal interpretation is called “textualism”:
The philosophy of interpretation I have described above is known as textualism. In some sophisticated circles, it is considered simpleminded—“ wooden,” “unimaginative,” “pedestrian.” It is none of that. To be a textualist in good standing, one need not be too dull to perceive the broader social purposes that a statute is designed, or could be designed, to serve; or too hidebound to realize that new times require new laws. One need only hold the belief that judges have no authority to pursue those broader purposes or write those new laws … A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.
Scalia then describes why the interpretive method of textualism is especially important for interpreting our Constitution:
Without pretending to have exhausted the vast topic of textual interpretation, I wish to address a final subject: the distinctive problem of constitutional interpretation. The problem is distinctive, not because special principles of interpretation apply, but because the usual principles are being applied to an unusual text. Chief Justice Marshall put the point as well as it can be put in McCulloch v. Maryland: “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” In textual interpretation, context is everything, and the context of the Constitution tells us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation—though not an interpretation that the language will not bear.
Scalia then gives the following example:
Take, for example, the provision of the First Amendment that forbids abridgment of “the freedom of speech, or of the press.” That phrase does not list the full range of communicative expression. Handwritten letters, for example, are neither speech nor press. Yet surely there is no doubt they cannot be censored. In this constitutional context, speech and press, the two most common forms of communication, stand as a sort of synecdoche [a figure of speech in which a part is made to represent the whole] … That is not strict construction, but it is reasonable construction. It is curious that most of those who insist that the drafter’s intent gives meaning to a statute reject the drafter’s intent as the criterion for interpretation of the Constitution. I reject 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. I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood. Thus I give equal weight to Jay’s pieces in The Federalist, and to Jefferson’s writings, even though neither of them was a Framer. What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.
Scalia then contrasts textualism with an antithetical interpretive method, namely the method supported by those who refer to a “Living Constitution”:
[T]he Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning. [That] school of constitutional interpretation affirms the existence of what is called The Living Constitution, a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and “find” that changing law … If you go into a constitutional law class, or study a constitutional law casebook, or read a brief filed in a constitutional law case, you will rarely find the discussion addressed to the text of the constitutional provision that is at issue, or to the question of what was the originally understood or even the originally intended meaning of that text. The starting point of the analysis will be Supreme Court cases, and the new issue will presumptively be decided according to the logic that those cases expressed, with no regard for how far that logic, thus extended, has distanced us from the original text and understanding … [But] a constitution[‘s] whole purpose is … to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that “evolving standards of decency” always “mark progress,” and that societies always “mature,” as opposed to rot … No fewer than three of the Justices with whom I have served have maintained that the death penalty is unconstitutional, even though its use is explicitly contemplated in the Constitution. The Due Process Clause of the Fifth and Fourteenth Amendments says that no person shall be deprived of life without due process of law; and the Grand Jury Clause of the Fifth Amendment says that no person shall be held to answer for a capital crime without grand jury indictment. No matter. Under The Living Constitution the death penalty may have become unconstitutional. And it is up to each Justice to decide for himself (under no standard I can discern) when that occurs … If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.
A greater fidelity to the originally understood meaning of legal texts would also go a long way toward reducing the perception and reality of bias among judges. Researchers have “found evidence of a loyalty effect among Supreme Court appointees. Justices are more like to vote in favor of the government of the president who appointed them than later governments, even after controlling for ideological and other relevant factors. Of particular interest, the effect is much stronger for Democratic judges than for Republican judges … It is striking that many Democratic justices did have prior relationships with the president, while none of the Republicans did … But judges are supposed to be independent of the government.” A 2018 Harvard poll also found that 66 percent of Americans believe that federal judges rule on the basis of political influence, while 34 percent said they believed they ruled on the basis of law.
Also, sadly, the United States Senate tends to defer to the American Bar Association’s ratings of federal judicial nominees when deciding whether or not to confirm a federal judge. Research has shown that “All else being equal, a Democratic nominee is more likely to be rated Well Qualified [by the American Bar Association] than a similarly qualified Republican nominee.”
In the next essay in this series, we’ll examine how the “normal” operation of the American legal system allows coercing money from innocent people.