Master Document Revised

Master Document Revised

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Lecture Notes for PS 4820

Judicial Decision-making

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Table of Contents

INTRODUCTION 1

The Approach of this Survey 3

SCALIA AND BREYER 7

Antonin Scalia 9

Stephen G. B Breyer 32

Stephen G. B Breyer 32

ANTIQUITY 52

Hindu Scholars 52

Socrates 53

Aristotle 54

MIDDLE AGES AND THE RENAISSANCE 62

Justinian 62

Interpreting Justinian 64

Francisco Suarez 67

ENGLAND IN THE FOURTEENTH CENTURY 68

Three stages of interpreting legislative intention 71 Judges as part of the legislative process 71 Judges, not part of the legislative process relying in those that were 72 Judges inferring the text’s meaning from the text itself 74

Samuel E. Thorne’s Anonymous 76

ENGLAND IN THE SIXTEENTH CENTURY 77

ENGLAND IN THE EIGHTEENTH CENTURY 81

Sir William Blackstone 81

THE UNITED STATES IN THE NINETEENTH CENTURY 86

The Colonial Legacy 86

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The Federalist Era 87 The Federalist Papers 87 Joseph Story 99

The Jacksonian Era 106 Francis Lieber 106 James Kent 116

THE TWENTIETH CENTURY 125

Oliver Wendell Holmes, Jr. 125

Roscoe Pound 134

Benjamin Nathan Cardozo 147

Learned Hand 172

Felix Frankfurter 181

Karl N. Llewellyn 187

Duncan Kennedy 191

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The chief lawmakers in our country may be, and often are, the

judges, because they are the seat of authority. Every time they interpret

contract, property, vested rights, due process of law, liberty, they

necessarily enact into law parts of a system of social philosophy; and as

such interpretation is fundamental, they give direction to all law-making.

The decisions of the courts on economic and social questions depend upon

their economic and social philosophy; and for the peaceful progress of

our people during the twentieth century we shall owe most to those judges

who hold to a twentieth century economic and social philosophy and not

to a long outgrown philosophy, which was itself the product of primitive

economic conditions.1

Judges ought to remember that their office is jus dicere, and not

jus dare; to interpret law, and not to make law, or give law.2

It has sometimes been said that the Law is composed of two

parts—legislative law and judge-made law, but in truth all the Law is

judge-made law. The shape in which a statute is imposed on the

community as a guide for conduct is that statute as interpreted by the

courts. The courts put life into the dead words of the statute. To quote . . .

from Bishop Hoardly: “Nay, whoever hath an absolute authority to

interpret any written or spoken laws, it is He who is truly the Law Giver to

all intents and purposes, and not the Person who first wrote and spoke

them.”3

1 President Theodore Roosevelt, Presenting the State of the Union to Congress on December 8, 1908.

Congressional Record Part I, p. 21. 2 Bacon, Francis, “Of Judicature,” 1612. 3 John Chipman Gray, quoted in Frank, Jerome. Courts on Trial (

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Introduction

Francis Lieber wrote in his 1839 treatise on interpretation that:

The freer a country, the more necessary becomes interpretation. For one of the

main ingredients of civil liberty, and at the same time one of its greatest blessings, is the protection against individual passion, violence, views, opinions,

caprice or well meant but disturbing interference—the supremacy of law. . . . [I]t

is necessary that the laws must be interpreted, and to do this justly and conscientiously, [judges] must proceed by proper, safe and sound rules. . . .

[with] the acknowledgement that the law shall be the immutable rule—a rule

above the judge, not one within his breast.4

No doubt neither Lieber nor anyone before or since has been able to identify

“immutable” rules of interpretation. Nonetheless, his work brought hermeneutical studies

to legal and political interpretation to the United States.5 It was Lieber’s insight that saw

the connection among hermeneutics, law and politics, and he sought to widen the scope

well beyond the courthouse and the academy as a way to foster the legal/political

institutions composed of the common law and the constitutional structure of the United

States.

As we will see, much ink has been consumed on Lieber’s hermeneutical

enterprise, yet it appears that not only is his search for immutable rules no further along,

any consensus that may have appeared in different periods of United States legal history

4 Lieber, Francis. Legal and Political Hermeneutics: or Principles of Interpretation and Construction in

Law and Politics. (Boston: “Charles C. Little and James Brown, 1839; Union, NJ: The Lawbook

Exchange, Ltd., 2002), 53. Citations are to the Lawbook Exchange edition. 5 “Hermeneutics” can be defined as “That branch of science which establishes the principles and rules of interpretation and construction, is called hermeneutics, from the Greek έρμήνευψ to explain, to interpret;

and the actual application of [the principles and rules] exegesis from the Greek έξήγηοις explanation.

Hermeneutics and exegesis stand in the relation to each other as theory and practice.” Lieber,

Hermeneutics, 64.

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has disappeared. The various treatments of legal hermeneutics “tend to be characterized

by a lack of understanding of hermeneutics.”6

Justice Antonin Scalia lamented as recently as 1997 of the “neglected state of the

science of construing legal texts. . . a sad commentary [where] we American judges have

no intelligible theory of what we do most”7 This is an interesting observation for several

reasons. For one thing, the art of interpretation is as old as dirt, as we moderns might put

it. A more scholarly way of putting it is that “interpretation is pre- if not nonscientific, as

old as literature, older than philosophy.”8 Second, the fact that judicial interpretation

affects our lives in many extremely important ways, from whether abortions are legal or

illegal to whether a plaintiff’s contributory negligence is a complete or partial bar to

recovery for injuries caused by a negligent defendant has been examined for a long

period. For another, the policy outcomes of the judicial branch ─ particularly of late ─

have come under tremendous scrutiny from legal, political and historical scholars since

the inception of the republic. Furthermore, the specific subjects of interpretation have

received no small amount of attention; at least since the so-called “hermeneutical turn” in

Anglo-Saxon-USA law began as early as 1961 with the publication of H.L.A. Hart’s

seminal The Concept of Law.9

Perhaps Scalia’s lamentation is justified because most works in the past half

century fit into three categories. One are the concrete empirical studies investigating the

6 Sherman, Brad. “Hermeneutics in Law.” 51 Modern Law Review 395 (1988), quoted in Legal

Hermeneutics: History, Theory, and Practice. Gregory Leyh, ed. (Berkley: University of California Press,

1992), xi. 7 Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton University Press (1997) p.p. 3, 14. 8 Kelly, Donald R. “Hermes, Clio, Themis: Historical Interpretation and Legal Hermeneutics.” 55 The

Journal of Modern History, (December 1983), 645. 9 Hart, H.L.A. The Concept of Law. Oxford: The Clarendon Press (1961)

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correlation of discrete units of analysis that do not connect with an overall theoretical

approach to interpretation or they are the opposite, namely, highly theoretical essays that

do not appear to have a connection to the mundane, everyday case that comes before the

courts, or they are promotions of a the pet—yet narrow— project of a judge, scholar or

commentator..10

These commentaries may also be, not only a promotion of a point of

view, but an attack on some other narrow point of view. In either case, the publications

generally seek to present and advocate one particular normative viewpoint of the

interpretative process. This book will attempt to overcome this abyss by surveying the

gambit of interpretative processes from the mundane everyday cases to the philosophical

approaches available to explain them.

The Approach of this Survey

I realize that some would dismiss that not everyone would approach a survey of

legal interpretation in this historical manner. As Judge Landis put it, “A passing

acquaintance with the literature of statutory interpretation evokes sympathy with the

eminent judge who remarked that books on spiritualism and statutory interpretation

were two types of literary ebullitions that he had learned not to read.”11

Professor

Michael S. Moore thinks that the “older literature on interpretation is both vacuous and

boring.”12

Even Justice Frankfurter lamented, “I confess unashamedly that I do not get

much nourishment from books on statutory construction, and I say this after freshly

reexamining them all, scores of them.” 13

These three are some of the very “older

10 In fact, Kelley emphases the point that contemporary hermeneutics has been largely the work of philosophers and literary critics with little regard for legal hermeneutics. Historical Interpretation, p. 665. 11 Landis, James M. “A Note on ‘Statutory Interpretation.” 43 Harv. L. Rev. 886, 886 (1930). 12 58 S. Cal. L. Rev. 279, 285. 13 Frankfurter, “Reflections,” 3.

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literature” that this survey will undertake to examine, realizing that at the time each wrote

their piece on legal interpretation, they were risking becoming “vacuous and boring” to

later generations that would consider them of a the “types of literary ebullitions that

[they] had learned not to read.” More seriously, it seems reasonable to consider that by

the time these writers were being bored with it all, they had achieved such heights of

knowledge—historical and otherwise—that they had not only forgotten what it was like

to be introduced to such an esoteric field, they were at the time more concerned with how

many angels could dance on the head of a pin, so to speak.

Before we go further, the term “hermeneutics,” a term that we will frequently

encounter needs to be further explained. The term is comes from the Greek word

herméneutikós which means skilled in interpreting. Herméneutikós is equivalent to

herméneúein which means to make clear.14

The Greek variations of the word

“hermeneutics” is believed to be derived ultimately from the Greek god in mythology

named Hermes who was a lesser god that acted as a messenger of the greater gods to

mortals who without Hermes’ explanations would not understand the message. Thus, he

is depicted in human form as a herald wearing a broad-brimmed hat, sandals and carrying

a herald’s staff. Hermes is thought to have received his name from the word “herma”

which was a stone or a collection of stones used as a boundary marker on a highway.

Eventually, the rocks took the form of a human bust, eventually taking on the name of

Hermes.15

14 “hermeneutic.” Dictionary.com. Dictionary.com Unabridged (v 1.1). Random House, Inc.

http://dictionary.reference.com/browse/hermeneutic (accessed: September 11, 2007) 15 “Hermes.” Encyclopædia Britannica. 2007. Encyclopædia Britannica Online. 11 Sept. 2007

http://search.eb.com/eb/article-9040160 (accessed September 11, 2007.

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While the term hermeneutic has been familiar to theologians and philologists

(people who study classical scholarship through ancient texts ) for ages as pertaining

almost entirely to interpreting texts such as the Bible and other ancient texts, it has come

to mean that and much more to modern readers in philosophy, literature and law.

Professor Richard Palmer has noted at least six modern definitions of hermeneutics:

(1) the theory of biblical exegesis; (2) general philological methodology; (3) the

science of all linguistic understanding; (4) the methodological foundations of Geisteswissenschaften [social studies]; (5) phenomenology of existence and of

existential understanding; and (6) the systems of interpretation, both recollective

and iconoclastic, used by man to reach the meaning behind myths and symbols.16

As Palmer notes, these definitions represent both chronological and thematic

stages in the evolution of hermeneutics as a scholarly discipline. In our study of legal

hermeneutics, the term represents the effort to reach, as far as possible, an understanding

of how judges and others concerned with the law interact with authoritative texts in

arriving at a resolution of so-called legal issues.

For our use, the term “interpretation” needs some clarification. Although a

dictionary definition of interpretation seems rather straightforward, viz., “the act of

interpreting; elucidation; explication,” it can be seen that is rather circular.

16 Palmer, Richard. Hermeneutics: Interpretation Theory in Schleiermacher, Dilthey, Heidegger, and

Gadamer. (Evanston, Ill: Northwestern University Press, 1969), 33.

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Scalia and Breyer

Antonin G. Scalia and Stephen G. Breyer have much in common: both are in their

early seventies; both of their names have the same middle initial; both received their

undergraduate degrees from prestigious universities; both received their law degrees from

Harvard; both served as editors of the Harvard Law Review; both studies abroad; both

have experience in government service; both taught at prestigious law schools; both

served on the Circuit Court of Appeals; and currently sit as associate justices on the

United States Supreme Court. Moreover, the two are without doubt the most interested

members of the Court in matters of interpretation, be it making the process more

transparent and in their willingness to public with their views on the interpretative

process.17

The similarities end there. Not only do Justice Breyer and Justice Scalia differ on

the decisional outcomes, they differ on the interpretative measures to reach the outcomes.

Indeed, they are pretty much 180° apart on most of the issues involving both process

issues and outcomes. Whether the process drives the outcomes or the outcomes drive the

process is not only highly debatable, but also even harder to analyze. In any event, an

examination of the justices’ position on the interpretative process is a good place to begin

a survey of judicial interpretation.

We are fortunate to have a synopsis of the views of both Justice Scalia and Justice

Breyer by way of lectures that were later published in book form. We have Justice

Scalia’s “Common Law Courts in a Civil Law System: The Rôle of the U.S. Federal

Courts in Interpreting the Constitution and Laws,” The Tanner Lectures on Human

17 And, they have the same middle-name initial.

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Values, delivered at Princeton University on March 8-9, 1995, and Justice Breyer’s “Our

Democratic Constitution,” The Tanner Lectures On Human Values delivered at Harvard

University November 17, 18 and 19, 2004.18

One knowledgeable veteran observer of the

Supreme Court has termed the difference between Breyer and Scalia as “a debate over

text versus context,” with Scalia as the “textualist” and Breyer as the “contextualist.”19

This dichotomy is as good a place as any to begin an analysis of positions on judicial

interpretation.

18 The Tanner Lectures, founded by American scholar, industrialist, and philanthropist Obert Clark Tanner

founded the Tanner Lectures in 1978, are a collection of educational and scientific discussions relating to

human values. Conducted by leaders in their fields, the lectures are presented at prestigious educational

facilities around the world. Justice Scalia’s lecture was published in A Matter of Interpretation: Federal

Courts and the Law. (Princeton: Princeton University Press, 1997). Justice Breyer’s lecture was published

in Active Liberty: Interpreting Our Democratic Constitution. (New York: Alfred A. Knopf, 2005). Unless

stated otherwise, references to page numbers will be from these published versions. References to Scalia’s

“Common Law Courts” will be referring to the version of the lectures of Justice Scalia published by the

University of Utah at http://www.tannerlectures.utah.edu/lectures/scalia97.pdf (accessed December 7,

2006.) References to Breyer’s “Democratic Consitution” will be to a draft of his Tanner Lectures published on the Supreme Court’s web site at http://www.supremecourtus.gov/publicinfo/speeches/sp_11-

17-04.html (accessed 12/8/2007 12:12:24 P.M.). 19 Linda Greenhouse, “Judicial Intent: The Competing Visions of the Rôle of the Court,” The New York

Times, July 7, 2002, Week in Review, 3.

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Antonin G. Scalia

Antonin G. Scalia, Associate Justice of the United States Supreme Court, was

born in Trenton, New Jersey, March 11, 1936. He married Maureen McCarthy and has

nine children - Ann Forrest, Eugene, John Francis, Catherine Elisabeth, Mary Clare, Paul

David, Matthew, Christopher James, and Margaret Jane. He received his A.B. from

Georgetown University and the University of Fribourg, Switzerland, and his LL.B. from

Harvard Law School, and was a Sheldon Fellow of Harvard University from 1960–1961.

He was in private practice in Cleveland, Ohio from 1961–1967, a Professor of Law at the

University of Virginia from 1967–1971, and a Professor of Law at the University of

Chicago from 1977–1982, and a Visiting Professor of Law at Georgetown University and

Stanford University. He was chairman of the American Bar Association’s Section of

Administrative Law, 1981–1982, and its Conference of Section Chairmen, 1982–1983.

He served the federal government as General Counsel of the Office of

Telecommunications Policy from 1971–1972, Chairman of the Administrative

Conference of the United States from 1972–1974, and Assistant Attorney General for the

Office of Legal Counsel from 1974–1977. He was appointed Judge of the United States

Court of Appeals for the District of Columbia Circuit in 1982. President Reagan

nominated him as an Associate Justice of the Supreme Court, and he took his seat

September 26, 1986.

At one end of the spectrum, we have Justice Scalia, rejecting legislative intent and

most everything else outside the legal text, a self-proclaimed “textualist.” In order to be a

textualist, “one need only hold the belief that judges have no authority to pursue those

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broader purposes or write those new laws.” 20

Justice Scalia is quick to point out that

being a “textualist” is not the same as being a “strict constructionists.” While he insists

on sticking with the text, he does not believe it should necessarily be read in a strictly

technical manner. The example Justice Scalia gives it his dissent in Smith v. United

States where the issue was whether the defendant’s sentence, convicted of drug-

trafficking offense, was subject to enhancement because he “used” a gun.21

The Court

found that the defendant’s use of the gun as an exchange for narcotics was “use” within

the meaning of the statute. Finding that it did, Justice O’Connor, for the majority stated,

“When a word is not defined by statute, we normally construe it in accord with its

ordinary or natural meaning.”22

Appealing to a couple of dictionaries that define “use” as

“"to convert to one's service" or "to employ” and “to make use of; to convert to one's

service; to employ; to avail oneself of; to utilize; to carry out a purpose or action by

means of,” Justice O’Connor asserted that “Surely petitioner's treatment of his MAC-10

can be described as "use" within the everyday meaning of that term.”23

Justice Scalia, not rejecting the “ordinary meaning of the word” approach,

appealing to another canon of construction—the meaning of a word cannot be determined

in isolation, but must be drawn from the context in which it is used—stated that “To use

an instrumentality ordinarily means to use it for its intended purpose, [namely, as a

weapon that discharges lethal missiles]. When someone asks, "Do you use a cane?" he is

20 Scalia, Interpretation, 23. 21 18 U.S.C. § 924(c)(1) requires the imposition of specified penalties if the defendant, “during and in

relation to any crime of violence or drug trafficking crime[,] uses or carries a firearm.” According to

Justice O’Connon’s opinion for the majority, “by its terms, the statute requires the prosecution to make two

showings. First, the prosecution must demonstrate that the defendant ‘use[d] or carrie[d] a firearm.’ Second, it must prove that the use or carrying was ‘during and in relation to’ a "crime of violence or drug

trafficking crime.” Smith v. United States, 508 U.S. 223, 227-228 (U.S. 1993). 22 508 U.S. 223, 228. 23 508 U.S. 223, 228.

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not inquiring whether you have your grandfather's silver-handled walking stick on

display in the hall; he wants to know whether you walk with a cane.24

Similarly, to speak

of ‘using a firearm’ is to speak of using it for its distinctive purpose, i.e., as a weapon.”25

Justice Scalia is not certain if the majority in Smith held the way, it did based on

strict construction or simply went outside the text to yield a preferred result. In any

event, he believes that the majority did not act as a responsible textualist, viz., construing

a text “reasonably, to contain all that it fairly means” and no more.26

- 27

[Digression] While Justice Scalia uses his interpretation of the phrase “uses a

firearm,” to illustrate his rejection of “strict construction,” as opposed to “reasonable and

fair construction,” it is interesting to note that the case illustrates as well an epoché.

24 “That one example of ‘use’ is the first to come to mind when the phrase ‘uses . . . a firearm’ is uttered

does not preclude us from recognizing that there are other ‘uses’ that qualify as well. In this case, it is both

reasonable and normal to say that petitioner ‘used’ his MAC-10 in his drug trafficking offense by trading it

for cocaine; [Justice Scalia] does not contend otherwise. [Justice Scalia's] example of how one might ‘use’ a cane, suffers from a similar flaw. To be sure, ‘use’ as an adornment in a hallway is not the first ‘use’ of a

cane that comes to mind. But certainly it does not follow that the only ‘use’ to which a cane might be put is

assisting one’s grandfather in walking. Quite the opposite: The most infamous use of a cane in American

history had nothing to do with walking at all, see J. McPherson, Battle Cry of Freedom 150 (1988)

(describing the caning of Senator Sumner in the United States Senate in 1856); and the use of a cane as an

instrument of punishment was once so common that ‘to cane’ has become a verb meaning ‘to beat with a

cane.’ Webster’s New International Dictionary, 2806 (2d ed. 1950) at 390. (508 U.S. 223, 230-231) To

which Justice Scalia could reply, “If the first use is the first use because it is the most typical use, it should

then be used—pun intended—first unless the text directs otherwise.” 25 508 U.S. 223, 242. This case is an example of Justice Scalia being joined by two of the Court’s more

liberal members of the court—Justices Souter and Stevens. 26 So, with this statement, it appears that to be a Scalian textualist, one must have at least two interpretative

dimensions: stick with the text and construe the text reasonably. To repeat him: “construing a text

“reasonably, to contain all that it fairly means” and no more.” Therefore, given this statement by Scalia, a

depiction of Justice Scalia’s textualist as a dichotomous juxtaposition of his “textualism” with Breyer’s

“contextualism” as we saw on page 9. Note also his statement at page 37 in Interpretation that “In textual

interpretation, context is everything.” 27 Scalia, Interpretation, 23. In any event, Scalia must certainly feel vindicated as the Court decided 9-0 in

a 2007 case that receiving a gun in a Smith situation is not “use” of the gun. Making a distinction between

trading a gun for drugs and trading drugs for a gun, Justice Souter, distinguishing Smith, stated, “(‘[W]hen

aperson pays a cashier a dollar for a cup of coffee in the courthouse cafeteria, the customer has not used the

coffee. He has only used the dollar bill’). So, when Watson handed over the drugs for the pistol, the

informant or the agent6 “used” the pistol to get the drugs, just as Smith held, but regular speech would not say that Watson him-self used the pistol in the trade. ‘A seller does not ‘use’ a buyer’s consideration,’”

[Citations omitted.] Watson v. United States, 2007 U.S. LEXIS 13081, 10 (U.S. 2007). Justice Scalia

might well have written a concurring opinion saying, “Told you!” In fact, Justice Ginsburg, concurring,

did call upon Justice Scalia’s dissent in Smith and for overturning Smith.

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Recall that committing an epoché means to place the conventional definition or

explanation of something in brackets to prevent it from explaining the object of attention

so that other possible explanations may be seen. The epoché does not mean the

conventional explanation is rejected, it is only set aside or bracketed. Both Justices

O’Connor and Scalia epochéd, but differed after that. Both justices recognize that the

conventional meaning of “use a gun” is to use it as a weapon from which projectiles are

shot or threatened to be shot by the force of an explosive.

Likewise, both go on to bracket the conventional definition to see other meanings

of the term. Recognizing the conventional meaning of the word “use,” stating,

“petitioner's treatment of his MAC-10 can be described as "use" within Surely the

everyday meaning of that term,” Justice O’Connor also found several other possible

meanings: “to use” as “to convert to one's service or to employ, to make use of; to

convert to one's service; to employ; to avail oneself of; to utilize; to carry out a purpose

or action by means of, to employ or to derive service from.” Justice O’Connor then

settled for the more non-conventional meaning of the word, stating, “Petitioner's handling

of the MAC-10 in this case falls squarely within those definitions. By attempting to trade

his MAC-10 for the drugs, he “used” or “employed” it as an item of barter to obtain

cocaine; he “derived service” from it because it was going to bring him the very drugs he

sought.”

Justice Scalia, also having considered other possible meanings alongside the

conventional meaning, decided to retrieve the conventional from its bracket. As Justice

Scalia put it, “It would, indeed, be both reasonable and normal to say that petitioner 'used'

his MAC-10 in his drug trafficking offense by trading it for cocaine. It would also be

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reasonable and normal to say that he “used” it to scratch his head. When one wishes to

describe the action of employing the instrument of a firearm for such unusual purposes,

“use” is assuredly a verb one could select. But that says nothing about whether the

ordinary meaning of the phrase “uses a firearm” embraces such extraordinary

employments. It is unquestionably not reasonable and normal, I think, to say simply “do

not use firearms” when one means to prohibit selling or scratching with them.

One of Justice Scalia’s most important concerns is the fact that far too many

judges go beyond the text when interpreting the text to render decisions not warranted by

the text’s language. The most offensive method used by these judges is “legislative

intent,” which Justice Scalia characterizes as “a handy cover for judicial intent.”28

In

fact, Justice Scalia feels so strongly about this point, he is willing to declare that “it is

simply incompatible with democratic government, or indeed with fair government, to

have the meaning of a law determined by what the lawgiver meant, rather than by what

the lawgiver promulgated.”29

Using the example of Nero, tyrannical emperor of Rome

from 54 to 68 C.E., who supposedly posted his edicts so high from the ground that no one

could read them, Justice Scalia stated, “Government by unexpressed intent is similarly

tyrannical. It is the law that governs, not the intent of the lawgiver.”30

Justice Scalia backs up to examine the essentially fundamental issue that concerns

just what is it we are looking for when we interpret a statutory text. He denounces the

notion of searching for legislative intention or the attempt to make the statute consistent

with other parts of the law because it introduces the judge’s subjectivity.

28 Scalia, Interpretation, 18. 29 Scalia, Interpretation, 17. 30 Scalia, Interpretation, 17.

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In reality, however, if one accepts the principle that the object of judicial

interpretation is to determine the intent of the legislature, being bound by genuine

but unexpressed legislative intent rather than the law is only the theoretical

threat. The practical threat is that, under the guise or even the self-delusion of

pursuing unexpressed legislative intents, common-law judges will in fact pursue their own objectives and desires, extending their lawmaking proclivities from the

common law to the statutory field. When you are told to decide, not on the basis

of what the legislature said, but on the basis of what it meant,and are assured that

there is no necessary connection between the two, surely 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, of course, will bring you to the

conclusion that the law means what you think it ought to mean.31

[Emphasis in

the original.]

Justice Scalia laments the increasingly prevalent practice of practitioners—and

judges as well we may suppose—of not only relying heavily on legislative debates and

committee hearings and reports, but also actually going straight to the legislative

activities that occurred prior to enactment before examining the text. He gives an

example of a brief of law that contained the following language: “To construe Section

1981, we must look to the history and language of that statute, not Section 1983.

Unfortunately, the legislative debates are not helpful. Thus, we turn to the other

guidepost in this difficult area, statutory language.”32

What is most galling to Justice Scalia about using legislative intent is that “it does

not even make sense for those that accept legislative intent as the criterion.”33

For, as he

states, 99.99 percent of the textual issues that come before the courts are issues for which

there is absolutely no legislative intent. He points out that floor debates in both chambers

are poorly attended, and there is no evidence that committee members or anyone else to

31 Scalia, Interpretation, 18. 32 1987 U.S. Briefs 2084. (U.S. S. Ct. Briefs 1989). The case was Jett v. Dallas Indep. Sch. Dist., 491 U.S.

701 (1980), Brief of Petitioner, 39-30. But see footnote 44 where it is pointed out that Justice Scalia is not

totally against a little legislative intent and history. 33 Scalia, Interpretation, 32.

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any extent reads the legislative reports prepared by committee staff members. Justice

Scalia offers up what he takes to be a typical example of the status of legislative

materials, especially committee reports. His quote includes the comments by Senator

William Lester Armstrong (Rep.-Colorado.) in which he established in a colloquy with

the Finance Committee chair, Senator Robert Dole (Rep. Kansas), that the authorship of

the committee report was unknown, that its readership was equally unknown and that the

committee had not voted approval of the report. Nonetheless, the committee intended—

upon intended—that courts and governmental agencies would “take guidance as to the

intention of the Congress from the committee report.” Senator Armstrong closed his time

by saying,

Mr. President, the reason I raise the issue is not perhaps apparent on the surface,

and let me just state it: . . . . The report itself is not considered by the Committee on Finance. It was not subject to amendment by the Committee on Finance. It is

not subject to amendment now by the Senate. . . . If there were matter within this

report which was disagreed to by the Senator from Colorado or even by a majority of all Senators, there would be no way for us to change the report. I

could not offer an amendment tonight to amend the committee report. . . . For

any jurist, administrator, bureaucrat, tax practitioner, or others who might chance

upon the written record of this proceeding, let me just make the point that this is not the law, it was not voted on, it is not subject to amendment, and we should

discipline ourselves to the task of expressing congressional intent in the statute.34

Justice Scalia points out that the Constitution places the task of legislation on the

full bodies of each chamber, not on the committees. He even claims that the committee

process—at least to the extent that it “makes” law—is unconstitutional. The legislative

power is non-delegable. “Congress can no more authorize one committee to ‘fill in the

details’ of a particular law in binding fashion than it can authorize a committee to enact

minor laws.”35

34 128 Cong. Rec. S8659 (daily ed. July 19, 1982). 35 Scalia, Interpretation, 35.

16

Justice Scalia gives us Harvard Law School Dean James M. Landis (1899-1964)

as an able opponent of legislative intent, for, in Dean Landis’ words, “[T]he gravest sins

are perpetrated in the name of the intent of the legislature. Judges are rarely willing to

admit their role as actual lawgivers, and such admissions as are wrung from their

unwilling lips lie in the field of common and not statute law.”36

Yet, Dean Landis saw

legislative history as a means to control legislative intent as an instrument of

interpretation. He stated, “A statute rarely stands alone. Back of Minerva was the briar

of Jove, and behind Venus the spume of the ocean. So of the statute, it is the culmination

often of long legislative processes, too rarely understood by the mere lawyer, and too

rarely studied to have been lifted from the contempt bred of ignorance. Such material

frequently affords a guide to the intent of the legislature conceived of in terms of

purpose.”37

Senator Armstrong (and Justice Scalia) makes a big deal out of the fact that

legislators vote on an unread text that is drafted by other legislators in committee and is

interpreted by judges using legislative reports written by committee staffers. Yet, there is

something about this in the law of agency. Imagine that the voting, non-reading

legislators have created an agency relationship wherein the committee became the agent

of the entire body of legislators. Over time the use of committees continued to grow in

number and utilization. We see as early as1800 the practice of referring legislative

proposals to small committees. (97) By the 1830s the practice of using small legislative

committees was so prevalent, Senator Daniel Webster (Whig-Massachusetts) was led to

36 James M. Landis, “A Note on ‘Statutory Interpretation,’ ” 143 Harv. L. Rev. No. 6 (April, 1930): 886,

891. Quoted in Scalia, Interpretation, 18. 37 Landis, “Statutory Interpretation,” 891.

17

ask, “what subjects need not be referred to them,” concluding “general propositions or

general measures in regard to which no investigation as to the facts as to particulars

might probably become necessary.”38

There is furthermore no problem, as far as agency

law is concerned, with judges looking to the products of the committee for interpretative

guidance. After all, “so far as concerns a third person dealing with an agent, the agent’s

‘scope of authority’ includes not only the actual authorization conferred upon the agent

by the principal, but also that which has apparently been delegated to the agent.

Apparent authority, or ostensible authority, is that which, though not actually granted, the

principal knowingly permits the agent to exercise, or which the principal holds the agent

out as possessing.”39

Moreover, if Congress becomes displeased at a judicial

interpretation─either for misinterpreting or for relying on committee activities and staff

reports, it can override the court. The failure of Congress to do so amounts to an implicit

ratification of the court’s action. Agency law holds that the “ratification of an

unauthorized act may be express1 or implied from the acts or conduct of the principal.40

But then, on the other hand, we have a venerable doctrine of agency that holds

that delegated powers from a principal to an agent cannot be delegated further by the

agent. Thus, classifying the citizens at large as principals and legislators as agents, the

legislators cannot delegate their duty to make policy to others ─ presumably according to

Justice Scalia ─ to legislators in committee and most certainly to staffers. To be sure, the

non-delegation doctrine has generally been considered in the context of separation of

powers whereby one branch cannot delegate its powers to another branch; more

38 McConachie, Lauros G. Congressional Committees: A Study of the Origins and Development of our

National and Local Legislative Methods. New York: Thomas Y. Crowell & Company, 1898. 39 3 Am Jur 2d Agency § 75. 40 Am Jur 2d Agency § 178.

18

specifically, legislative power cannot be delegated to administrative agencies. Not only

is its application to the power of committees to originate and draft legislation, it has

become almost defunct as a constitutional issue.

So, the debate surrounding the use of legislative intent as an interpretative tool

goes on.

Justice Scalia took issue with Landis on the notion that legislative history is a

means of controlling legislative intent. He also disagreed with Landis’ disapproval of

point and on the use of so-called canons of construction, which Landis detested and

Scalia approved as a useful tool of textualism, due to their “commonsensical”

characteristics.41

Justice Scalia does acknowledge that canons can be manipulated. “To

be sure, there are ambiguities involved, and hence opportunities for judicial willfulness,

in other techniques of interpretation as well—the canons of construction, for example,

which Dean Landis so thoroughly detested. However, the manipulability of legislative

history has not replaced the manipulabilities of these other techniques; it has augmented

them.”42

The section in which he discusses the two is entitled “Canons and

Presumptions.”43

Without actually giving an explanation of the distinction between

“canons” and “presumptions” or “rules” of construction, Justice Scalia speaks favorably

of canons and says of the latter that they “load the dice for or against a particular result.”

41 Scalia, Interpretation, 26. 42 Scalia, Interpretation, 36. 43

Eskridge makes a distinction among three types of canons: (1) textual canons that are precepts of

grammar, syntax and logical inferences; (2) extrinsic source cannons that are rules of deference to the interpretations others have placed on a text; and (3) substantive canons that are policy rules and

presumptions. Substantive canons are differentiated based on the source of their derivation: (1) the

Constitution, (2) statutes, and (3) the common law. Eskridge, “William N., Jr. Dynamic Statutory

Interpretation. Cambridge, (MA: Harvard University Press, 1994), 276.

19

Although Justice Scalia does not furnish definitions, he gives examples of each category.

As examples of canons, he mentions (1) expressio unius est exclusio alterius: expression

of the one is exclusion of the other; (2) noscitur a sociis, something is known by its

companions; and (3) ejusdem generis, which means of the same sort. Following this

listing, he approves of their use, saying, “All of this is so commensensical that, but for the

fact it is Latin, you would find it hard to believe anyone could criticize it.” Justice Scalia

also approves of the canon of construction called lapsus linguae which stands for the

proposition that a statute has a scrivener’s error on the face of it, the judge should correct

the error. 44

Among his examples of “presumptions” are: (1) the rule of lenity which calls for

any textual ambiguity to be resolved in favor of an accused; (2) ambiguities in treaties

dealing with Native Americans are to be resolved in favor of Native Americans; (3)

statutes that are in derogation of the common law are to be construed narrowly; remedial

statutes are to be liberally construed to achieve what is called their “intended purposes;

and waivers of sovereign immunity are to be narrowly construed. He follows this list

with the negative comment that “To the honest textualist, all of these rules and

presumptions are a lot of trouble. It is hard enough to provide a uniform, objective

answer to the question whether a statute, on balance, more reasonably means one thing

rather than another. But it is virtually impossible to expect uniformity and objectivity

44 Scalia, Interpretation, 26, 20 Justice Scalia, in a concurring opinion, did speak approvingly of this

canon, but also indicated that he was not opposed to looking at legislative history as a way to justify using a

text’s plain meaning: “We are confronted here with a statute which, if interpreted literally, produces an

absurd, and perhaps unconstitutional, result. Our task is to give some alternative meaning to the word

‘defendant’. . . that avoids this consequence; and. . . . I think it entirely appropriate to consult all public materials, including the background of Rule 609(a)(1) and the legislative history of its adoption, to verify

that what seems to us an unthinkable disposition . . . was indeed unthought of, and thus to justify a

departure from the ordinary meaning of the word "defendant" in the Rule.” Green v. Bock Laundry Mach.

Co., 490 U.S. 504, 527 (1989).

20

when there is added, on one side or another of the balance, a thumb of indeterminate

weight.”

On the one hand, since it is apparent from his examples that Justice Scalia

considers “canons” to consist of what Eskridge labeled canons derived from precepts of

grammar, syntax and logical inferences, it is to be expected that Justice Scalia, as a

textualist, would approve of their use. [See note 43 above] On the other hand, it is

apparent that he considers “presumptions” to be policy-based presumptions, and thus, as

an opponent of judges injecting their subjectivity into the interpretative process, he would

be opposed to their use.

Justice Scalia issues a call to end, to abandon the use of legislative history,

legislative intent. He next turns his attention to constitutional interpretation, which he

sees as a problem distinct from statutory interpretation. The distinction does not relate to

the principles of interpretation, but, rather, the fact that the normal interpretative

principles are being applied to an unusual text. Justice Scalia quotes Chief Justice

Marshall on the nature of the constitution as a constitution, one such “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.”45

According to Justice Scalia, “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, of course, an

interpretation that the language will not bear.”46

45 McCulloch v. Maryland, 17 U.S. 316, 407 (1819). 46 Scalia, Interpretation, 37. While propounding textualism as a form of objectivism that privileges the text

by placing “meaning” in the text rather than in the judge, Justice Scalia nonetheless at times sounds as if he

(Continued on next page.)

21

The “Great Divide,” as Justice Scalia put it, is not concerned with the possible

difference between authorial intent and objective meaning, the debate is rather over

whether constitutional interpretation should concentrate on the text’s original meaning or

its contemporary meaning. His bête noire is the so-called “living constitution,” that

“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.”47

According to Justice Scalia, “Judges simply ask

themselves (as a good common-law judge would) what ought the result to be, and then

proceed to the task of distinguishing (or, if necessary, overruling) any prior Supreme

Court cases that stand in the way.”48

In fact, he maintains that currently

The starting point of [living-constitutional] 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, this extended has

distanced us from the original text and understanding. Worse still, however, it is

known and understood that if that logic fails to produce what in the view of the current Supreme Court is desirable result for the case at hand, then, like good

common-law judges, the Court will distinguish its precedents, or narrow them, or

if all else fails overrule them, in order that the Constitution might mean what it

ought to mean.49

Justice Scalia insists, “It certainly cannot be said that a constitution naturally

suggests changeability; to the contrary, its whole purpose is to prevent change - to embed

approves of some variation of what Stanley Fish calls “reader response where a community of readers

[judges] are mostly responsible for determining the meaning of a text. Justice Scalia wrote, “[W]e know

when and where the words were promulgated, and thus we can ordinarily tell without the slightest difficulty

what they meant to those who read or heard them.” Scalia, “Law & Language.” To be sure, Justice Scalia

wrote these words in the context of not needing to know an author’s meaning to know the meaning of the

words, and he could counter any affinity to any post-modern notion of reader response theory by saying

that the reader knows the meaning because he “knows” the meaning of the text. Actually, I have offered

what seems to be a plausible meaning of what he said, but changed my interpretation when I consider what

he most likely meant. In fact, I cannot ignore—even if I wanted to—what I think Scalia meant, given the

things I have read he wrote and given the things I have heard him say. If this is a reasonable conclusion, what does it make of his assertion that the author’s meaning is meaningless? 47 Scalia, Interpretation, 38. 48 Scalia, “Common Law Courts,” 113. 49 Scalia, Interpretation, 39.

22

certain rights in such a manner that future generations cannot take them away.”50

He

rattles off a list of situations where the “evolving” Constitution has taken placed restraints

on administrative, judicial and legislative action:

admitting in a state criminal trial evidence of guilt that was obtained by an unlawful

search;51

permitting invocation of God at public-school graduations ;52

electing one of the two houses of a state legislature the way the United States Senate is

elected (i.e., on a basis that does not give all voters numerically equal representation) ;53

terminating welfare payments as soon as evidence of fraud is received, subject to

restoration after hearing if the evidence is satisfactorily refuted;54

imposing property requirements as a condition of voting;55

prohibiting anonymous campaign literature;56

prohibiting pornography.57

Justice Scalia’s sees the main problem with a “living” or “evolving’ Constitution

is that there is no guiding principle, not even the “desires of the American people in

determining how the Constitution should evolve. They follow nothing so precise; indeed,

as a group they following nothing at all.”58

The one area of this topic that concerns Justice Scalia very much is the “evolving

standards” of the Eight Amendment regarding the criteria for determining the meaning of

the ban on “cruel and unusual punishment.” The argument for evolving standards was

made by Justice Joseph McKenna in a 1910 case, where he opined that

Legislation, both statutory and constitutional, is enacted, it is true, from an

experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings

50 Scalia, Interpretation, 40. One might raise the possible distinction that taking rights away as opposed to

extending rights does not necessarily involve the same considerations. 51 Mapp v. Ohio, 367 U.S. 643 (1961). 52 Lee v. Weisman, 505 U.S. 577 (1992). 53

Reynolds v. Sims, 377 U.S. 533 (1964). 54 Goldberg v. Kelly, 397 U.S. 254 (1969). 55 Kramer v. Union Free School District, 395 U.S. 621 (1969), 56 McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). 57 Miller v. California, 413 U.S. 15 (1973) 58 Scalia, Interpretation, 44.

23

into existence new conditions and purposes. Therefore a principle to be vital

must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed

to meet passing occasions. They are, to use the words of Chief Justice Marshall,

“designed to approach immortality as nearly as human institutions can approach

it.” The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution,

therefore, our contemplation cannot be only of what has been but of what may

be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have

little value and be converted by precedent into impotent and lifeless formulas.

Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and

restrictive construction.59

Justice Scalia, on the contrary, asserts that the “Constitution I interpret is not

living but dead, or—as I prefer to call it—enduring. . . It means today not what current

society and much less the Court thinks it ought to mean, but what it meant when it was

adopted.”60

In a Supreme Court decision that brought the death penalty for retarded

persons within the meaning of the Cruel and Unusual Clause, Justice Scalia

acknowledged the state of the law nonetheless as holding that “a punishment is ‘cruel and

unusual’ if it falls within one of two categories: ‘those modes or acts of punishment that

had been considered cruel and unusual at the time that the Bill of Rights was adopted,’

and modes of punishment that are inconsistent with modern ‘standards of decency,’ as

evinced by objective indicia, the most important of which is ‘legislation enacted by the

country’s legislatures.’”61

[Citations omitted]

Nonetheless, he adheres to the position enunciated as follows: “the

constitutionality of the death penalty is not a difficult, soul-wrenching question. It was

59 Weems v. United States, 217 U.S. 349, 373 (U.S. 1910). 60

Justice Scalia’s remarks at a conference, “A Call for Reckoning: Religion & the Death Penalty,” January

25, 2002, reported in The University of Chicago Magazine, Vol. 94 (April, 2002) No. 4. 61 Atkins v. Virginia, 536 U.S. 304, 339-340 (U.S. 2002). In Atkins, Justice Scalia stated that “The Court

makes no pretense that execution of the mildly mentally retarded would have been considered "cruel and

unusual" in 1791.” This should be the end of the matter, but he must as a member of the minority on the

issue address the second requirement even though he does not think it a constitutional requirement.

24

clearly permitted when the Eighth Amendment was adopted (not merely for murder, by

the way, but for all felonies—including, for example, horse-thieving, as anyone can

verify by watching a western movie). And so it is clearly permitted today.”62

Justice Scalia does not base his decisions on his moral or religious faith, but

squarely on his textual view of constitutional interpretation. For him the evolving

standard thing is a matter for the legislative branches in the federal system. As he said,

“There is plenty of room within this system for “evolving standards of decency,” but the

instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald

that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the

United States, but the Congress of the United States and the legislatures of the fifty states,

who may, within their own jurisdictions, restrict or abolish the death penalty as they

wish.”63

Justice Scalia disapproved of the position of some like Justice Harold Blackmun

(1908-1999) who, near the end of his tenure on the Supreme Court, declared that he could

not vote for capital punishment in any form, for “From this day forward, I no longer shall

tinker with the machinery of death.”64

Justice Scalia believes that Justice Blackmun and

others confuse the difference between “private” morality and “governmental” morality,

which he believes is a “predictable. . . erroneous and regrettable reaction to modern,

62 Scalia, Antonin “God’s Justice and Ours.” First Things: The Journal of Religion, Culture and Public

Life. (May, 2002). http://www.firstthings.com/article.php3?id_article=2022, (Accessed 12/7/2007 1:52:03

P.M.) Justice Scalia finds agreement with Justice Hugo Black who wrote ‘The Eighth Amendment forbids

"cruel and unusual punishments.’ In my view, these words cannot be read to outlaw capital punishment

because that penalty was in common use and authorized by law here and in the countries from which our

ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers

intended to end capital punishment by the Amendment. Although some people have urged that this Court

should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power” McGautha v. California, 402 U.S. 183,

226 (U.S. 1971). 63 Scalia, “God’s Justice.” 64 Justice Blackmun dissenting in Callins v. Collins, 510 U.S. 1141, 1145 (U.S. 1994).

25

democratic self-government.”65

While Justice Scalia supports his legal position relative

to the death penalty vis-à-vis the Eight Amendment on the principles of textualism, he

calls on St. Paul to support the government’s morality with the following quote:

Let every soul be subject unto the higher powers. For there is no power but of

God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to

themselves damnation. For rulers are not a terror to good works, but to the evil.

Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: For he is the minister of God to thee for good. But if

thou do that which is evil, be afraid; for he beareth not the sword in vain: for he

is the minister of God, a revenger to execute wrath upon him that doeth evil.

Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.

66

Justice Scalia uses this passage to sanction governmental action when individual action

would not be permitted. As he put it, “the core of his message is that government-

however you want to limit that concept-derives its moral authority from God. It is the

“minister of God” with powers to ‘revenge,’ to ‘execute wrath,’ including even wrath by

the sword (which is unmistakably a reference to the death penalty). . . . [I]n this world the

Lord repaid-did justice-through His minister, the state.”67

Justice Scalia maintains that

the nation’s existence as a “religious people, whose institutions presuppose a Supreme

Being. . . . explain[s] why our people are more inclined to understand, as St. Paul did, that

government carries the sword as the ‘minister of God,’ to ‘execute wrath’ upon the

evildoes.”68

This, Justice Scalia sees in contradistinction to “a democratic government,

being nothing more than the composite will of its individual citizens, has no more moral

power or authority than they do as individuals.”69

65

Scalia, “God’s Justice.” 66 Romans 13:1-5. 67 Scalia, “God’s Justice.” 68 Scalia, “God’s Justice.” 69 Scalia, “God’s Justice.” In any event, although Justice Scalia says his votes on capital punishment “have

nothing to do with how I vote in capital cases,” it is more than noteworthy that as a Catholic, “It will come

(Continued on next page.)

26

Back to textualism. There is an interesting twist to Justice Scalia’s position on

using outside sources to interpret a text when it comes to constitutional interpretation.

You may recall that Justice Scalia refused to consult the statements of legislators

regarding legislative intent behind or the purpose of a statutory text. Not so with the

Constitution. His approach to the Constitution involves not only “textualism,” but also

“originalism.” In other words, it is not only the text, but it is the meaning of the text

when it was originally produced. As with the Eight Amendment, it is not what the

words—text—means today, it is what they meant when adopted in 1789 and 1791 or

whenever amendments are adopted.70

Where the twist comes in is that Justice Scalia is willing to go outside the

constitutional text much more so than he is willing to go outside the statutory text to

determine its meaning. Indeed, Justice Scalia plainly states that

I will consult the writings of some men who happened to be Framers -

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

as no surprise from what I have said that I do not agree with the encyclical Evangelium Vitae and the new

Catholic catechism (or the very latest version of the new Catholic catechism), according to which the death

penalty can only be imposed to protect rather than avenge, and that since it is (in most modern societies)

not necessary for the former purpose, it is wrong.” Yet, Justice Scalia insists that he is not necessarily in

favor of the death penalty, he is just not against it. 70 Justice Scalia offers the opinion of Chief Justice Howard Taft in Myers v. United States, 272 U.S. 52

(1926) as a classic application of originalism. He characterizes the opinion as “a prime example of what, in

current scholarly discourse, is known as the ‘originalist’ approach to constitutional interpretation. The

objective of the Chief Justice’s lengthy opinion was to establish the meaning of the Constitution, in 1789,

regarding the presidential removal power. He sought to do so by examining various evidence, including

not only, of course, the text of the Constitution and its overall structure, but also the contemporaneous

understanding of the President’s removal power (particularly the understanding of the First Congress and of the leading participants in the Constitutional Convention), the background understanding of what [the

King’s] ‘executive power’ consisted of under the English constitution, and the nature of the executive's

removal power under the various state constitutions in existence when the federal Constitution was

adopted.” 57 U. Cin. L. Rev. 849, 851-852.

27

in the Federalist, and to Jefferson’s writings, even though neither of them was a

Framer.71

Justice Scalia’s position on going outside the Constitutional text appears to be

inconsistent with his position on statutory texts. Consider the following comparison:

“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 will consult the debates of some who

happened to be delegates to Congress─Senator

and Representative so-and-so, for example.

I do so, however, not because they were

Framers and therefore their intent is authoritative and must be the law;

I do so, however, not because they were

legislators and therefore their intent is authoritative and must be the law

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.

Thus, I give equal weight to committee

staffers’ pieces in committee reports even

though none of them were legislators.

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

drafter meant.”

What I look for in the statute is precisely what I

look for in the Constitution, the original

meaning of the text, not what the original

draftsman meant.

To be sure, Justice Scalia insists that it is the objective meaning of the text, not the

subjective intentions of its authors that he is after. “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.”72

The distinction may seem somewhat problematic. To be

sure, if one is to determine the meaning of words written two hundred years ago, an

investigation of the comments of knowledgeable people at the time must be consulted as

well as professional historians. This necessity may not be so important when considering

contemporary legislation. Nonetheless, as we will see in a case involving the Court’s

contemporary interpretation of the term “interstate commerce” that was written in 1925

may present similar problems.

Justice Scalia concluded his lectures with the following remarks:

71 Scalia, Interpretation, 38. 72 Scalia, Interpretation, 38.

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As I said at the outset of these lectures, the interpretation and application of

democratically adopted texts comprises virtually all the work of federal judges, and the vast majority of the work of state judges, in New Jersey and elsewhere. I

have tried to explain why, in my view, we common lawyers come to the bench ill

prepared for that task - indeed, even ill disposed towards that task. I have

discussed a few principles of statutory interpretation that seem to me the most basic or the most currently in need of emphasis. That part was principally of

interest to the lawyers among you. And finally, I have discussed the major issue

of textual interpretation posed by that peculiar type of text known as a constitution. These last remarks were not distinctively lawyers’ or judges’

business, but the business of every intelligent citizen; for as I have explained, if

the people misunderstand the nature of the Constitution, and the role of the courts in its enforcement, the enterprise cannot succeed.

73

A good example of Justice Scalia’s textualist/originalist approach is an opinion he

wrote in 1991 involving a person sentenced to a statutorily mandated life sentence of life

in prison without the possibility of parole following a conviction of possessing 672 grams

of cocaine. The defendant claimed that the sentence was unconstitutional as being

disproportionate to the crime in violation of the Eight Amendment’s Cruel and Unusual

Punishment Clause. Even to a large extent today, some commentators believe that the

Cruel and Unusual Punishment Clause containes a proportionality dimension.74

After all,

Justice McKenna, writing for himself and three other members of the Court in a 1910

decision that invalidated the imposition of cadena temporal,75

stated at one point, “it is a

precept of justice that punishment for crime should be graduated and proportioned to

offense,”76

and at another quoting Justice Stephen Field stated, “that the [Cruel and

Unusual Punishment Clause] was directed, not only against punishments which inflict

torture, ‘but against all punishments which by their excessive length or severity are

73 Scalia, Common Law Courts, 121. 74 See, Bedau, H.A., “Cruel and Unusual Punishment,” in The Oxford Companion to the United States

Supreme Court,2nd ed., Kermit Hall, ed. (New York: Oxford University Press, 2005), 239-240. 75 The punishment of cadena temporal is imprisonment from twelve years and one day to twenty years. Prisoners are employed at hard and painful labor while forced to always carry a chain at the ankle, hanging

from the wrists. Other penalties include: (1) civil interdiction; (2) perpetual absolute disqualification; and

(3) perpetual surveillance. 76 Weems v. United States, 217 U.S. 349, 367 ( 1910).

29

greatly disproportioned to the offenses charged.’ He said further: ‘The whole inhibition

is against that which is excessive in the bail required or fine imposed, or punishment

inflicted.’”77

By the time the issue reaches Justice Scalia in 1991, the Supreme Court appeared

to be of two minds. Two cases in the very early 1980s, refusing to apply a proportional

dimension to the Cruel and Unusual Punishment Clause was followed by a 1983 that did.

Justice Scalia came down firmly and unequivocally against finding a proportionality

dimension in the clause. “The Eight Amendment contains no proportionality guarantee. .

. . the length of a sentence is purely a matter of legislative prerogative.”78

From his

textual perspective, Justice Scalia in an opinion joined only by Chief Justice Rehnquist,

stated that while “a disproportionate punishment can perhaps always be considered

‘cruel,’ but it will not always be (as the text also requires) ‘unusual.’”79

Thus, even if the

punishment is “cruel,” the determination as to whether it is “unusual” remains. And,

from his originalist perspective, this depends on two things: one, whether or not the Cruel

and Unusual Punishment Clause was understood at the time of its adoption to include a

proportionality dimension and two, whether or not a sentence such as the one at hand

was—also in 1791—considered “unusual.”

Justice Scalia makes a detailed examination of the history of the Cruel and

Unusual Punishment Clause and its possible relationship with a proportionality

dimension. The clause is a direct descendent of the 1689 English Bill of Rights which

did not contain a proportionality clause, the absence of which is important, for since the

77 217 U.S. 349, 371. 78 Harmelin v. Michigan, 501 U.S. 957, 962, 965 (1991). 79 501 U.S. 957, 967.

30

time of the Magna Carta in 12515, which contained a proportionality provision, the

principle of proportionality was well-known to English law.80

Moreover, Justice Scalia’s

historical investigation revealed that when the principle was used, it was used to

invalidate not “excessive” punishments; rather it invalidated “illegal” punishments.81

Concluding that the Cruel and Unusual Punishment Clause does not contain a

proportional dimension, the matter could be brought to a conclusion. Nonetheless,

Justice Scalia goes on to examine the fact that “in 1791—and until 1826—, England

punished over 200 crimes with death,” including all felonies except mayhem. He pointed

out the fact that several states had explicit proportional dimensions in their laws, and

Thomas Jefferson had proposed a Bill For Proportioning Crimes and Punishments,82

that

Congress, even after proposing the Bill of Rights, enacted a penal statute that “punished

forgery of United States securities, ‘running away with [a] ship or vessel, or any goods or

merchandise to the value of fifty dollars,’ treason, and murder on the high seas with the

same penalty: death by hanging.”83

Justice Scalia’s position would appear to foreclose an examination of the term or

content of a punishment, for he rejected the notion that it would be proper to consider a

punishment in reference to the offense. To do so, would be in his opinion tantamount to

making the clause a proportional guarantee. In short, it appears that whatever forms of

80

The omission of proportionality in the English Bill of Rights makes us recall the discussion of the

negative pregnant that the Anti-Federalists complained about in regards to the inclusion of the right to jury trials in criminal cases and the omission of the right in civil cases. (See the discussion on page 96.) 81 See 501 U.S. 957, 969, 973. 82 Which the Virginia legislature rejected in 1778. 83 501 U.S. 957, 980-981.

31

punishment were “usual” in 1791 would be, in constitutional terms, considered “usual”

today.84

On a BBC program Scalia on torture on the BBC (HT TPM):

"You can't come in smugly and with great self satisfaction and say 'Oh it's torture, and

therefore it's no good'," he said in a rare interview. . . . In the interview with the Law in

Action programme on BBC Radio 4, he went on to say that it was “extraordinary” to

assume that the ban on “cruel and unusual punishment” - the US Constitution’s Eighth

Amendment - also applied to “so-called" torture. “To begin with the constitution... is

referring to punishment for crime. And, for example, incarcerating someone indefinitely

would certainly be cruel and unusual punishment for a crime.”

Justice Scalia argued that courts could take stronger measures when a witness

refused to answer questions. “I suppose it's the same thing about so-called torture. Is it

really so easy to determine that smacking someone in the face to determine where he has

hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?”

he asked. “It would be absurd to say you couldn't do that. And once you acknowledge

that, we're into a different game. How close does the threat have to be? And how severe

can the infliction of pain be?”

84 Justice Scalia, acknowledging that Weems contains some language that might support the existence of a

proportionality dimension in the Cruel and Unusual Punishment Clause, nevertheless denied that it was

authority for that proposition due to the fact that the case in point of fact concerned a “punishment [that]

was both (1) severe and (2) unknown to Anglo-American tradition.” (501 U.S. 957, 991)

32

Stephen G. B Breyer

Stephen Gerald Breyer (1938 — ) Associate Justice of the United States Supreme

Court, was born in San Francisco, California, August 15, 1938. He married Joanna Hare

in 1967, and has three children - Chloe, Nell, and Michael. He received an A.B. from

Stanford University, a B.A. from Magdalen College, Oxford, and an LL.B. from Harvard

Law School. He served as a law clerk to Justice Arthur Goldberg of the Supreme Court

of the United States during the 1964 Term, as a Special Assistant to the Assistant U.S.

Attorney General for Antitrust, 1965–1967, as an Assistant Special Prosecutor of the

Watergate Special Prosecution Force, 1973, as Special Counsel of the U.S. Senate

Judiciary Committee, 1974–1975, and as Chief Counsel of the committee, 1979–1980.

He was an Assistant Professor, Professor of Law, and Lecturer at Harvard Law School,

1967–1994, a Professor at the Harvard University Kennedy School of Government,

1977–1980, and a Visiting Professor at the College of Law, Sydney, Australia and at the

University of Rome. From 1980–1990, he served as a Judge of the United States Court

of Appeals for the First Circuit, and as its Chief Judge, 1990–1994. He also served as a

member of the Judicial Conference of the United States, 1990–1994, and of the United

States Sentencing Commission, 1985–1989. President Clinton nominated him as an

Associate Justice of the Supreme Court, and he took his seat August 3, 1994.85

While Justice Scalia’s interpretative methods begins and ends on the “textualist”

side of the spectrum, Justice Breyer’s only begins with the text, it does not end there. He

actually believes relying too heavily on the text can lead to unfortunate interpretative

results. “[W]hen difficult statutory questions are at issue, courts do better to focus

85 Taken from the Supreme Court’s Biographies of Current Judges.

http://www.supremecourtus.gov/about/biographiescurrent.pdf, (accessed 12/8/2007 11:52:29 A.M.)

33

foremost upon statutory purpose, ruling out neither legislative history nor any other form

of help in order to locate the rôle that Congress intended the statutory words in question

to play.” In further contrast to Justice Scalia’s, Justice Breyer disapproves of too much

reliance on canons of construction.

Defending the use of “legislative intent” during a time when its use by the

Supreme Court was declining, Justice Breyer found canons of construction lacking in

four ways.86

First, citing Llewellyn’s 1950 Vanderbilt law review article, he noted that

“when existing canons conflict with each other they fail to offer much guidance.”87

Second, noting that “the origins or continued justifications for some of the canons . . .

seem obscure,” Justice Breyer gives the following example: “unless a statute, in so many

words, or by a necessary and inescapable inference, restricts a court’s jurisdiction in

equity, the full scope of that jurisdiction is to be recognized and applied.” Use of this

canon in a 1982 case that cited an early nineteenth century case for authority, led Justice

Breyer to conclude, “One might question the relevance of such a canon to twenty-first

legislation.”88

The third objection to the use of canons of construction that Justice Breyer gave is

actually the flip side of his second, namely, that while the long-standing canons may

often prove antiquated, they do “possess a time honored acceptance” that new canons do

not. In other words, Justice Breyer questions the legitimacy of judges creating modern

86 See Breyer’s description of “legislative intent” on page 50. 87 Breyer, Stephen. “On the Uses of Legislative History in Interpreting Statutes.” 65 Cal. L. Rev. (January,

1992), 845, 869. It is helpful to note that while Justice Breyer disapproves of too much emphasis on what

Eskridge has labeled canons from grammar, syntax and logical inference, he approves of the extrinsic

source canons, which include legislative history, and—as we will soon see—the substantive canons because they further the democracy-enhancing goal of Breyer’s interpretative enterprise. (See Note 43

above for Eskridge’s classification.) 88 Breyer, “On the Uses of Legislative History,” 870. For the two cases, see Weinberger v. Romero-

Barcelo, 456 U.S. 305, 313 (1982) and Brown v. Swann, 35 U.S. 497, 503 (1836) respectively.

34

canons such as one that would favor the use of cost/benefit analysis in regulatory statutes.

Fourth, rejecting the notion that any knowledge by legislators of the future use of known

canons is useful, he wrote,

Why are court-produced canons of interpretation more useful than the legislative

history produced by the interest groups, executive departments, experts, legislators, staff members, and others directly involved in the legislative process?

Indeed, the average citizen interested in future interpretation of a statute would

probably find legislative history far more accessible than a Blackstone “canon” based upon eighteenth century land law.

89

In short, Justice Breyer holds that the “near-exclusive reliance upon canons and other

linguistic interpretive aids in close cases can undermine the Constitution’s democratic

objectives.90

The key words for Justice Breyer’s interpretative methodology in the last quote

are “the Constitution’s democratic objectives.” He began his Tanner Lectures putting his

position in the following words, “My thesis is that courts should take greater account of

the Constitution’s democratic nature when they interpret constitutional and statutory

texts.”91

Part and parcel of Justice Breyer’s notion of U.S. democracy is characterized by

two types of liberty—ancient and modern. More specifically, modern liberty is “freedom

from government,” ancient democracy is “active” liberty or “the freedom of the

individual citizen to participate in government.”92

Quoting the Swiss born writer and

French political philosopher, Benjamin Constant’s (1767-1830) The Liberty of the

Ancients Compared with That of the Moderns (1819), Justice Breyer elaborated on

“active” liberty as consisting of a sharing of a nation’s sovereign authority among that

89

Breyer, “On the Uses of Legislative History,” 870. 90 Breyer, Stephen. Active Liberty: Interpreting our Democratic Constitution. (New York: Alfred A. Knopf, 2005), 98-99. 91 Breyer, Active Liberty, 5. 92 Breyer, Active Liberty, 3. Justice Breyer does not coin a term for modern liberty as he does with “active

liberty” for ancient liberty. We will use the term “defensive liberty” for this purpose.

35

nation’s citizens. From the citizen’s perspective it meant “an active and constant

participation in collective power.”93

Ancient liberty—liberty to participate—did not keep

the government from becoming the tyranny of the majority. Thus, the desire for modern

tyranny—the freedom of the individual to be left alone. Although Justice Breyer

emphasized “active” liberty in his Tanner Lectures, he did not mean to indicate a lack of

interest in nor appreciation for modern liberty.

Justice Breyer’s description of the “democracy” as instituted by the Founder,

especially Madison, reveals quite a bit of naiveté in historical analysis. For example, he

makes reference to a passage in Federalist Number Fifty-Seven written by Madison (or

Hamilton) that poor and rich alike participate in elections for members of the U.S. House

of Representatives. The passage states:

Who are to be the electors of the federal representatives? Not the rich, more than

the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious

fortune. The electors are to be the great body of the people of the United States.

They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State.

The fact of the matter is that, as most historians agree, no more than one-tenth to

one-sixth of the population was enfranchised at the time. It has been estimated that the

suffrage belonged to 3% of Madison’s fellow Virginians, 2% in Connecticut, 9% in

Rhode Island, 8% in New York City, and Pennsylvania. Thus, when reading Madison

with one eye on his contemporary circumstances rather than through today’s prism,

passages such as this one read radically different. One historian of the 1800 election that

presumably brought “democracy” to the nation with the election of Jefferson and the

93 Breyer, Active Liberty, 4.

36

Republicans, estimates that out of a population of 5.3 million, only 550,000 were entitled

to vote.

Pulling “active” liberty from The Federalist Papers is dubious at best. Madison

was, if anything, certainly not majority rule. Moreover, his preferred faction was the

property-owning rich. As Madison put it in Federalist Number Ten, the representative

process will yield one that will “to refine and enlarge the public views, by passing them

through the medium of a chosen body of citizens, whose wisdom may best discern the

true interest of their country, and whose patriotism and love of justice will be least likely

to sacrifice it to temporary or partial considerations. . . . [whose decisions] will be more

consonant to the public good than if pronounced by the people themselves. . . .”

In short, while Justice Breyer may well be on to something by using “democracy”

as a strategy for legal interpretation, he should, nonetheless, recognize the reality that

Justice Thurgood Marshall described the U.S. democratic as follows: “The government

they devised was defective from the start, requiring several amendments, a civil war, a

momentous social transformation to attain the system of constitutional government, and

its respect for the individuals and human rights, we hold as fundamental today. When

contemporary Americans cite ‘The Constitution,’ they invoke a concept that is vastly

different from what the Framers barely begun to construct two centuries ago.”

Nonetheless, with that said the use of a concept of democracy as an interpretative

tool is what Justice Breyer is all about regardless of its historical underpinnings.

37

Justice Breyer considers himself a proponent of judicial restraint.94

Justice Breyer

has praised a 1932 opinion of Justice Louis Brandeis for what it means regarding the

posture of judicial restraint.95

This case involved an Oklahoma statute that required strict

licensing and operational standards and ultimate state approval for anyone wishing to

establish an ice company. The Court found the statute to violate the Fourteenth

Amendment’s Due Process Clause. Justice Brandeis filled his thirty-one-page opinion

with copious amounts of empirical data that he believed supported the reasonableness of

the state’s action.

For Justice Breyer, the point of Justice Brandeis’ dissent is wrapped up in two

statements by that reflect the theoretical position of both justices concerning two

important facets of our government. The first relates to the structural relationship

between the U.S. Supreme Court and state governments, viz., federalism: “It is one of the

happy incidents of the federal system that a single courageous State may, if its citizens

choose, serve as a laboratory; and try novel social and economic experiments without risk

to the rest of the country.” The second relates to the relationship between the judicial and

legislative branches, viz., separation of powers: “But in the exercise of this high power,

94 According to one researcher, of the justices on the Court between 1994 and 2005, Justice Breyer was the

least likely to declare an act of Congress unconstitutional. Justice Thomas—the most likely to do so—was

willing to do so two and one-half times more than Justice Breyer was. However, Justice Breyer was 1.6

times more likely to overturn a state statute than was Justice Thomas. Ringhand, Lori A., “Judicial

Activism: An Empirical Examination of Voting Behavior on the Rehnquist Natural Court,” (Constitutional

Commentary, 2007), 6, 15. Available at SSRN: http://ssrn.com/abstract=765445. (Accessed 12/15/2007 10:50 A.M. 95 The speech is “Justice Brandeis as Legal Seer,” delivered in honor of Justice Brandeis at the University

of Louisville School of Law on February 16, 2004. The case is New State Ice Co. v. Liebmann, 285 U.S.

262 (1932).

38

we must be ever on our guard, lest we erect our prejudices into legal principles. If we

would guide by the light of reason, we must let our minds be bold.”96

In his lecture and book, Justice Breyer placed these two statements in the context

of his own attitude toward judicial restraint.

These two statements do not favor or disfavor any particular set of economic or

social beliefs. Rather, they describe a structural relationship, a proper structural relationship, between the courts and the Constitution. This relationship means

that legislatures, both federal and state, must have broad power to determine the

legal relationships among labor, management, capital, and consumers. And courts, when they review legislative decisions about economic and social matters

(where basic individual liberties are not threatened) must respect a legislature's

judgments.97

Justice Breyer found these two statements to contain several truths that affect one’s

notions of judicial interpretation; they are:

first, a truth about the world, namely the likely relevance of factual matters to the

solution of an economic problem;

second, a truth about the judiciary, namely the comparative inability of judges to

find remedies for substantive economic problems;

third, a truth about legislatures, namely their comparative advantage when it

comes to investigating the facts, understanding their relevance, and finding

solutions;

and fourth, a truth about the Constitution, namely its democratic preference for

solutions legislated by those whom the people elect.98

96 97 Breyer, “Justice Brandeis as Legal Seer.” 98 Breyer, “Justice Brandeis as Legal Seer.” Justice Breyer’s position on this issue can be seen in his

dissenting opinion in Ashcroft v. ACLU, 542 U.S. 656, (U.S. 2004) wherein Justice Thomas voted with the

more liberal members of the court in the majority and Justice Breyer voted with the more conservative

members, including Justice Scalia. The case involved the constitutionality of the Child Online Protection

Act of 1998. The Court ruled that an injunction issued by the District Court should be sustained because

Congress failed to show that protecting minors from pornography by the means provided in the act were the

least intrusive of First Amendment rights of adults. Justice Breyer dissenting called the Court to task writing, “The Court's holding raises two more general questions. First, what has happened to the

‘constructive discourse between our courts and our legislatures’ that ‘is an integral and admirable part of

the constitutional design’? After eight years of legislative effort, two statutes, and three Supreme Court

cases the Court sends this case back to the District Court for further proceedings. What proceedings? I

(Continued on next page.)

39

Justice Breyer’s overall position regarding the relationship between the judiciary

and the legislative branches can be summed up in the following statement in which he

paraphrases Justice Brandeis: first “courts are ill-equipped to make the investigations

which should precede most legislation. . . . [and] a judge’s agreement or disagreement

about the wisdom of a law has nothing to do with the right of a majority to embody their

opinions in law.”99

Justice Breyer’s general outlook regarding the constitutional structure or what he

calls a “view of the Constitution as a whole,” is described by him as “that [our]

government is democratic; it avoids concentration of too much power in too few hands; it

protects personal liberty; it insists that the law respect each individual equally; and it acts

only upon the basis of law itself.”100

Regarding these elements of democracy, Justice

Breyer’s opinion is that the current Court is undervaluing the importance of active liberty.

In light of what Breyer has just written, take a look at his statement in 1996 case

and a 2003 opinion that he joined regarding an issue in tort law that had been the

province of state governments since time immemorial. These statements come as the

U.S. Supreme Court federalized punitive awards in tort cases by elevating them to a

constitutional issue under the Fourteenth Amendment. “A ‘grossly excessive’ punitive

award amounts to an ‘arbitrary deprivation of property without due process of law.’ Bmw

have found no offer by either party to present more relevant evidence. What remains to be litigated? I

know the Court says that the parties may ‘introduce further evidence’ as to the ‘relative restrictiveness and

effectiveness of alternatives to the statute.’ But I do not understand what that new evidence might consist

of.” 542 U.S. 656, 689. Incidentally, on remand the District Court held that the act was facially

unconstitutional and granted a permanent injunction. ACLU v. Gonzales, 478 F. Supp. 2d 775 (D. Pa. 2007). The Third Circuit affirmed the District Judge’s decision in ACLU v. Mukasey, 534 F.3d 181 (2008)

and the Supreme Court denied certiorari, (129 S.Ct. 1032, January 2009). 99 Breyer, Active Liberty, 17. 100 Breyer, Active Liberty, 8-9.

40

of N. Am. v. Gore, 517 U.S. 559, 586 (U.S. 1996), Breyer, concurring. “We decline again

to impose a bright-line ratio which a punitive damages award cannot exceed. Our

jurisprudence and the principles it has now established demonstrate, however, that, in

practice, few awards exceeding a single-digit ratio between punitive and compensatory

damages, to a significant degree, will satisfy due process.” State Farm Mut. Auto. Ins.

Co. v. Campbell, 538 U.S. 408, 425 (U.S. 2003). Justice Kennedy, for the Court with

Breyer joining the opinion.

Looking at Justice Breyer’s view of a person’s active and defensive liberties, we

can see how they fashion his approach to the interpretation and application of the First

Amendment. As he points out, pushing too far in protecting either one jeopardizes the

other. In other words, while active liberty is to be preferred when concerned with speech

that shapes public opinion—as in public protest in downtown parades, it can restrict the

ability of legislatures to enact restrictions that benefit the public—as in maintaining safe

and free flow of traffic. These “considerations argue, among other things, against

category boundaries that are too rigid of fixed and against too mechanical an application

of those categories.”101

A dilemma a bit more serious than use of the downtown square on an autumn

Saturday morning involves the defensive liberty of individuals in making campaign

contributions and the active liberty goal of maximizing widespread political participation.

As Justice Breyer points out, money plays a crucial rôle in the democratic process; but it

has a double edge. For one thing, free speech is not worth so much without the support

of money, yet, for another, too much money in too few hands can pervert the democratic

101 Breyer, Active Liberty, 43.

41

process. It is not surprising that the First Amendment’s speech clause is usually viewed

in terms of “defensive liberty.” After all, the very words, “Congress shall make no law . .

. abridging freedom of speech,” instantly creates an impression the government attacking

the individual’s right.

Nonetheless, Justice Breyer argues that “to understand the First Amendment as

seeking in significant part to protect active liberty, ‘participatory self-government,’ is to

understand it as protecting more than the individual’s modern [defensive] liberty.”102

The “Amendment [can be seen] as seeking primarily to encourage the exchange of

information and ideas necessary for citizens themselves to shape that ‘public opinion

which is the final source of government in a democratic state.’”103

Justice Breyer is thus

asking us to view campaign legislation as an effort to democratize—in a majoritarian

sense—the process in a larger sense than just playing “hands off.” Justice Breyer says

the reason that the Supreme Court uses heightened scrutiny rather than strict scrutiny in

its analysis of campaign legislation is a recognition that the First Amendment contains

both dimensions. The constitutional test is proportionality: “Does the statute strike a

reasonable balance between electoral speech-restricting and speech-enhancing

consequences?”104

102 Breyer, Active Liberty, 46. It can seem rather strange when Justice Breyer gives the First Amendment,

if not the key rôle in democratic elections, a major rôle when nearly a decade after its adoption, as the

Republicans were gaining strength in local politics, Federalist legislators in Massachusetts and New

Hampshire repealed the popular vote and elected delegates themselves, and in the same year—1800—only

five states out of the sixteen states of the union permitted popular voting for presidential electors. In one

state, Tennessee, sheriffs elected the delegates to the Electoral College. See law professor and historian

Edward J. Larson’s A Magnificent Catastrophe: The Tumultuous Election of 1800, American’s First Presidential Campaign. (New York: Free Press, 2007). 103 Breyer, Active Liberty, 47, quoting Judge Hand’s opinion in Masses Pub. Co. v. Patten, 244 F. 535, 539

(D.N.Y. 1917). 104 Breyer, Active Liberty, 49.

42

Justice Breyer exhibits these very interpretative attributes in a 2003 case

involving the Bipartisan Campaign Reform Act of 2002.105

Title V, § 504 required

broadcasters to keep publicly available records of politically related broadcasting

requests.106

The section also contained an “election message request” requirement that

required broadcasters to also keep records of requests made to the broadcaster by any

member of the public to broadcast a message about a candidate to federal office. The

plaintiffs that sought to have the act declared unconstitutional claimed that these

requirements are “invasive” and they “impose onerous administrative burdens, [and] lack

any offsetting justification, and consequently violates the First Amendment.”

The three-judge District Court panel ruled that Title V was unconstitutional on the

ground, as one judge, District Judge Richard Leon, put it, “the record does not establish

the existence of a substantial governmental [read public] interest necessary to warrant the

disclosure requirements set forth in Section 504.”107

With the judge’s further comments,

it becomes obvious that he is looking at the regulation from the defensive liberty

perspective. “Absent such evidence, the government lacks a constitutionally acceptable

105 McConnell v. FEC, 540 U.S. 93, 260 (2003). This is a multifaceted statute with five titles containing

several disputed sections concerning different aspects of campaign financing. It generated an equally multifaceted Supreme Court decision that is 350 pages with three different opinions for the court, five

concurring opinions and six dissenting opinions. We will examine only one opinion for the Court written

by Justice Breyer to see how he uses active liberty as an interpretative tool. 106 The record must include whether the request to purchase was accepted or rejected; the rate charged for

the broadcast; the date and time on which the communication aired; the class of time that is purchased; the

name of the candidate to which the communication refers and the office to which the candidate is seeking

election, the election to which the communication refers, or the issue to which the communication refers; in

the case of a request on behalf of a candidate, the name of the candidate, the authorized committee, and the

treasurer of the committee; and in the case of any other request, the name of the person purchasing the time,

the name and contact information for such person, and a list of chief executive officers or members of the

executive committee or board of directors. 107 McConnell v. FEC, 251 F. Supp. 2d 176, 811 (D.D.C. 2003). The other judges were D.C. Circuit Judge Karen Henderson and D.C. District Judge Colleen Kollar-Kotelly. Judge Henderson’s Memorandum

Opinion of May 2, 2003, Reported at: 251 F. Supp. 2d 176 at 266. Judge Kollar-Kotelly’s Memorandum

Opinion of May 1, 2003, Reported at: 251 F. Supp. 2d 176 at 432. Judge Leon’s Memorandum Opinion of

May 1, 2003, Reported at: 251 F. Supp. 2d 176 at 756.

43

justification to enact a disclosure provision that imposes an onerous collection and

disclosure system on broadcast licensees; infringes the associational rights [**184] of

groups and their members who engage in broadcasting; and potentially curtails political

speech invaluable to an informed electorate.” 108

In overturning the three-judge District Court panel, Justice Breyer, quoting

Federal Election Commission regulations, approached the regulation from the perspective

of enhancing the active aspect of liberty on behalf of a wider public. He wrote, “‘[t]hese

records are necessary to permit political candidates and others to verify that licensees

have complied with their obligations relating to use of their facilities by candidates for

political office’ pursuant to the ‘equal time’ provision of” federal campaign financing

law.109

Another statement that reveals the influence on permitting the Constitution to

enhance the active participation of the broader public, Justice Breyer wrote,

“recordkeeping can help both the regulatory agencies and the public evaluate

broadcasting fairness, and determine the amount of money that individuals or groups,

supporters or opponents, intend to spend to help elect a particular candidate.”110

Another example furnished by Justice Breyer is centered around a case that

involved the affirmative action program at the University of Michigan Law School that

considered race as one of the “soft” variables in an effort to “achieve that diversity which

has the potential to enrich everyone's education and thus make a law school class stronger

than the sum of its parts.” Justice Breyer points out that the law school did not take the

108 251 F. Supp. 2d 176, 812 109 McConnell v. FEC, 540 U.S. 93, 237 (2003). 110 540 U.S. 93, 239.

44

normal, expected tack that its affirmative action program was an attempt to remedy past

discrimination. Rather, it took a Breyer-active-liberty approach, arguing,

[L]aw schools need the autonomy and discretion to decide that teaching about the

rôle of race in our society and legal system, and preparing their students to function effectively as leaders after graduation, are critically important aspects of

their institutional missions. . . . The presence of minority students is also essential

to the Law School’s educational process in other ways. At its most successful, the educational process is a productive collision not only of facts and ideas, but

also of people. . . . students need to learn how to bridge racial divides, work

sensitively and effectively with people of different races, and simply overcome

the discomfort of interacting with people visibly different from themselves. 111

(Emphasis is in the original.)

Justice O’Connor, for herself and four other justices—Justice Breyer among them,

wrote about race as one among a variety of attributes that are part of the educational mix.

“Just as growing up in a particular region or having particular professional experiences is

likely to affect an individual's views, so too is one's own, unique experience of being a

racial minority in a society, like our own, in which race unfortunately still matters. The

Law School has determined, based on its experience and expertise, that a "critical mass"

of underrepresented minorities is necessary to further its compelling interest in securing

the educational benefits of a diverse student body.”112

Justice Breyer’s reaction was to say, “What are these arguments but an appeal to .

. . principles of active liberty?”113

(Emphasis is in the original.) He went on to pose the

following rhetorical question:

When faced with one interpretation of the Equal Protection Clause that, through efforts to include, would facilitate the functioning of democracy and a different

interpretation of the Equal Protection Clause that, through perceived exclusion,

might impede the functioning of that democracy, is it surprising that the Court

majority chose the former? Is not that interpretation more compatible with a

111 Brief for Appellant at 25, Grutter v. Bollinger, 539 U.S. 306, (2003) (No. 02-241). 112 539 U.S. 306, 333. 113 Breyer, Active Liberty, 82.

45

Constitution that seeks to create a democratic government able, as a practical

matter, to function?114

Given his predisposition to view constitutional, statutory and regulatory texts

through the prism of what he sees as its democratic structure, Justice Breyer offers a list

six interpretative alternatives of what he calls “basis tools,” all of which judges should

use to interpret a text. First, he begins with the text, but immediately suggests that it be

read in light of its related language. Second, the interpreter should “take account of its

history, including history that shows what the language likely meant to those who wrote

it.” Third, they should “look to tradition indicating how the relevant language was, and

is, used in the law.” Fourth, they should “examine precedents interpreting the phrase,

holding or suggesting what the phrase means and how it has been applied.” Fifth, they

should attempt to “understand the phrase’s purpose or (in respect to many constitutional

phrases) the values that it embodies.” Sixth, they should “consider the likely

consequences of the interpretative alternatives, valued in terms of the phrase’s purposes.”

Justice Breyer recognizes that not all judges use all of the six viewpoints, and he

emphasizes that which ones are used makes a difference in judicial outcomes. His

favorites of the six “purpose” and “consequences” because he feels “a focus on purpose

seeks to promote active liberty by insisting on interpretations, statutory as well as

constitutional, that are consistent with the people’s will. A focus on consequences, in

114 Breyer, Active Liberty, 83. The alternative interpretation to which Justice Breyer refers is one that is held by Justice Thomas, viz., “The Constitution abhors classifications based on race, not only because those

classifications can harm favored races or are based on illegitimate motives, but also because every time the

government places citizens on racial registers and makes race relevant to the provision of burdens or

benefits, it demeans us all.” 539 U.S. 306, 353.

46

turn, allows us to gauge whether and to what extent we have succeeded in facilitating

workable outcomes which reflect that will.”115

Justice Breyer is critical of judges that “look primarily to the text. . . . based on

canons of construction in the search for an ‘objective’ key to the statute’s proper

interpretation. . . . ”116

Justice Breyer summed up his purposive/consequentialist approach as follows:

Other judges look primarily to the statute’s purposes for enlightenment. They

avoid the use of interpretive canons. They allow context to determine the level of generality at which they will describe a statute’s purpose—in the way that

context tells us not to answer the lost driver’s request for directions, “where am

I?” with the words “in a car.” They speak in terms of Congressional “intent,” while understanding that legal conventions govern the use of that term to

describe, not the intent of any, or every, individual legislator, but the intent of the

group—in the way that linguistic conventions allow us to speak of the intentions

of an Army or a team, even where they differ from those of any, or every, soldier or member. And they examine legislative history, often closely, in the hope that

the history will help them better understand the context, the enacting legislators’

objectives, and ultimately the statute’s purposes. At the heart of a purpose-based approach stands the “reasonable Member of Congress”—a legal fiction that

applies, for example, even when Congress did not in fact consider a particular

problem. The judge will ask how this person (real or fictional), aware of the statute’s language, structure, and general objectives (actually or hypothetically),

would have wanted a court to interpret the statute in light of present

circumstances in the particular case.117

With his position abstractly stated, Justice Breyer furnishes some concrete

examples involving decided cases that deal in turn with the Constitutional text and

statutory texts. One statutory construction example involves the Foreign Sovereign

Immunities Act of 1976 (FSIA). One of its provisions granted foreign states immunity in

litigation in the United States under specified conditions. The act defined “foreign state”

115 Breyer, Active Liberty, 115. See more about “purpose” on page 37. 116 Breyer, Active Liberty, 86-87. 117 Breyer, Active Liberty, 89; see also p. 106 for another statement regarding the “assumed” legislative

intent.

47

to include an “agency or instrumentality of a foreign state.” “Agency or instrumentality

of a foreign state” is defined, in turn, as:

Any entity—(1) which is a separate legal person, corporate or otherwise, and (2)

which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or

political subdivision thereof, and (3) which is neither a citizen of a State of the

United States . . . nor created under the laws of any third country. 118

The issue was whether a corporation’s subsidiary can claim “instrumentality” status

where the foreign state does not own a majority of the subsidiary’s shares but does own a

majority of the shares of the corporate parent. The case involved farm workers in Central

America that sued Dole Food Company in a Hawaiian state court alleging injuries from

pesticides that Dole used in the areas where the workers performed their work. Dole

brought Dead Sea Bromine Company into the suit because, as the manufacturer of the

pesticide, it may be also exposed to liability.

Dead Sea sought to remove the case to federal court and be brought within the

immunity provision of FISA alleging that it was an instrumentality of the state of Israel.

The Court’s majority, apply rules of “corporate formalities,” held that Dead Sea was not

an instrumentality of Israel because there was a corporate entity, Israel Chemicals

Limited, between the two. Israel owned all of the stock in Israel Chemicals which itself

owned the majority shares in Dead Sea. Writing for the majority in an opinion that

Justice Scalia joined, Justice Kennedy emphasized the technical nature of corporate law

and its relationship to the statutory text. He stated

It is evident from the Act’s text that Congress was aware of settled principles

of corporate law and legislated within that context. The language of § 1603(b)(2) refers to ownership of “shares,” showing that Congress intended statutory

coverage to turn on formal corporate ownership. Likewise, § 1603(b)(1), another

118 28 U.S.C. § 1603.

48

component of the definition of instrumentality, refers to a “separate legal person,

corporate or otherwise.” In light of these indicia that Congress had corporate formalities in mind, we assess whether Israel owned shares in the Dead Sea

Companies as a matter of corporate law, irrespective of whether Israel could be

said to have owned the Dead Sea Companies in everyday parlance.119

Another interpretative tactic that Justice Kennedy used was reading the text in

light of other parts of the code where similar issues are involved. For example, he

referred to sections in four different titles of the United States Code that expressly

provided for “direct and indirect ownership.”120

Justice Breyer, dissenting, argued that the “statute’s language, standing alone,

cannot answer the question.” He refers to treatises and cases to support the proposition

that technical distinctions regarding the term “ownership” do not restrict its scope.121

But, his main point concerns the overall purpose of the statute and the consequences of

alternative interpretations. Rejecting the “various linguistic indicia to which the majority

points,” he stated, “Judges are free to consider statutory language in light of a statute's

basic purposes,” which he found to include:

“(1) to provide a foreign-state defendant in a legal action the right to have its

claim of a sovereign immunity bar decided by the “courts of the United States;”

(2) to make certain that the merits of unbarred claims against foreign states, say,

states engaging in commercial activities. . . will be decided “in the same manner” as similar claims against “a private individual;” but (3) to guarantee a foreign

state defending an unbarred claim certain protections, including a prohibition of

punitive damages, the right to removal to federal court, a trial before a judge, and other procedural rights.”

122

119 Dole Food Co. v. Patrickson, 538 U.S. 468, 474 (2003). 120

Justice Breyer, for his part, was able to refer to three sections of the code where “Congress felt it

necessary explicitly to use the word ‘direct’ (a word missing in the FSIA) in order to reach [the majority’s result]. 538 U.S. 468, 483. 121 Justice Breyer did not hesitate to use his own preferred canon of interpretation, viz., judges “give the

words of a statute their ordinary, contemporary, common meaning.” 122 538 U.S. 468, 484.

49

Justice Breyer was convinced that the purposes stated should be equally

applicable to a foreign nation when it acts directly in its own name or when it acts

through other corporate structures. As he put it, “Given these purposes, what might lead

Congress to grant protection to a Foreign Nation acting through a Corporate Parent but

deny the same protection to the Foreign Nation acting through, for example, a wholly

owned Corporate Subsidiary? The answer to this question is: In terms of the statute's

purposes, nothing at all would lead Congress to make such a distinction.”123

As for alternative consequences, Justice Breyer stated not only that the majority’s

interpretation “seriously imperil the accomplishment of [the statute’s] purpose, “working

lawyers will now have to factor into complex corporate restructuring equations

(determining, say, whether to use an intermediate holding company when merging or

disaggregating even wholly owned government corporations) a risk that the government

might lose its previously available access to federal court.”124

Justice Breyer called upon Justice Holmes for support by making some quotes

from one of his opinions, which includes some of the following:

The purpose of the act of Congress was “to encourage investment by exempting

the investor from loss in excess of the fund he is willing to risk in the enterprise.” For this purpose no rational distinction can be taken between several persons

owning shares in a vessel directly and making the same division by putting the

title in a corporation and distributing the corporate stock. The policy of the statutes must extend equally to both. In common speech the stockholders would

be called owners, recognizing that their pecuniary interest did not differ

substantially from those who held shares in the ship. We are of opinion that the words of the acts must be taken in a broad and popular sense in order not to

defeat the manifest intent. This is not to ignore the distinction between a

corporation and its members, a distinction that cannot be overlooked even in

extreme cases, but to interpret an untechnical word in the liberal way in which we believe it to have been used—as has been done in other cases.

125

123 538 U.S. 468, 485 124 538 U.S. 468, 486. 125 Flink v. Paladini, 279 U.S. 59, 62-63 (1929).

50

Justice Breyer concludes his Tanner Lectures with a discussion of two cases

involving the display of religious artifacts where he appears at first blush to be

inconsistent. One case involved a monument displaying the Ten Commandments on a

twenty-two-acre site surrounding the Texas State Capitol, existing for nearly a half

century, that containing seventeen monuments and twenty-one historical markers

commemorating the people, ideals, and events that compose Texan identity 126

The other

involved copies of the Ten Commandments, including a citation to the Book of Exodus,

that were posted in each of two of a Kentucky county’s courthouses. In one situation, the

county’s legislative body required Commandments to be posted in “a very high traffic

area.” In the other situation, the Commandments were hung as part of a ceremony

presided over by the county executive with the assistance of a member of the clergy.127

Justice Breyer saw the Texas display as constitutionally permissible and the

Kentucky display as constitutionally impermissible. He reconciled this facial

contradiction on the ground that both were made in light of the intended purpose and

consequence of the First Amendment’s Establishment Clause, viz., “the need to avoid a

‘divisiveness based on religion that promotes social conflict.’”128

In the Texas case, he

opined that a determination must “remain faithful to the underlying purposes of the

Clauses, and it must take account of context and consequences measured in light of those

purposes. . . . in reaching the conclusion that the Texas display falls on the permissible

126

Van Orden v. Perry, 545 U.S. 677 (U.S. 2005). 127 McCreary County v. A.C.L.U., 545 U.S. 844 (U.S. 2005). 128 Quoting his concurring opinion in Van Orden, 545 U.S. 677, 698. You may notice this sentence

contains the explicit and implicit essence of Justice Breyer’s interpretative approach. First, there is

authorial intention that is another name for purpose, then directly to consequence; all of which are read

through the lens of “active” liberty.

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side of the constitutional line, I rely less upon a literal application of any particular test

than upon consideration of the basic purposes of the First Amendment's Religion Clauses

themselves. This display has stood apparently uncontested for nearly two generations.

That experience helps us understand that as a practical matter of degree this display is

unlikely to prove divisive. 129

(Emphasis is in the original.)

In the Kentucky case, Justice Breyer led him and other members of the Court’s

majority to the conclusion that “the display sought to serve its sponsors’ primarily

religious objectives and that many of its viewers would understand it as reflecting that

motivation . . . . [thus was] likely to prove socially divisive. . . . thereby creating the very

kind of religiously based divisiveness that the Establishment Clause was designed to

prevent.”130

Justice Breyer closes his Lectures with, “Of course, my examples are no more

than that, examples. They do not prove the general superiority of the interpretations they

illustrate. But if you agree that examination of consequences can help us determine

whether our interpretations promote specific democratic purposes and general

constitutional objectives, I will have made my point.”131

129 Justice Breyer concurring, 545 U.S. 677, 700, 704. 130 Breyer, Active Liberty, 122-123. 131 Breyer, Active Liberty, 131.

52

Antiquity

A short history of (legal) interpretation is in order before we go on. Perhaps the

most important thing we will discover with this excursion is the fact that the

interpretative issues we confront today have been around for a very, very long time.

An Irishman Samuel Davidson (1807-1898), noted biblical scholar, described

hermeneutics as “The meaning of all language, written or spoken, [that] is developed by

the application of general laws, usually termed Hermeneutics.” 132

Since antiquity,

hermeneutics was concerned with the methods of interpreting texts. First and foremost,

the hermeneutical enterprise was concerned withy sacred texts. Early examples include

Ezra explaining the law of Moses to the Judeans after the sixth century B.C.E. The priests

“read from the scroll of the Teaching of God, translating it and giving the sense; so they

understood the reading.”133

Since at least the latter part of the nineteenth century in

Europe and mid-twentieth century USA, it has come to be a part of the philosophical

issue of interpretation of, not only text, but also the human condition.

Hindu Scholars

One of the early examples of hermeneutical inquiry was the Mimasma of Jaimini.

Jaimini was a Hindu scholar who is credited with starting a formal tradition of studying

sacred Hindu texts. Mimasma means reflection or critical analysis, in this case analysis

of the meaning of a text.134

Jaimini’s efforts brought on a school of philosophy that

sought to explain (interpret) sacred Hindu texts. Members of the school engaged itself in

132 “hermeneutics.” Oxford English Dictionary Online. http://dictionary.oed.com.ezproxy.mtsu.edu/.

(accessed September 11, 2007) 133 Nehemiah 8:8 134 It may or may not be ironic that removing the first “m” from “Mimasma” reveals “miasma” which

means in one sense “a dangerous, foreboding, or deathlike influence or atmosphere.” Miasma.

Dictionary.com. Dictionary.com Unabridged (v 1.1). Random House, Inc.

http://dictionary.reference.com/browse/miasma (accessed: December 07, 2007).

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the study of words because they were concerned with “correct” methods of interpreting

the Vedas (the body of Hindu sacred writings). Jaimini’s collection of sūtras

(interpretative canons), believed to have been written as early as 400 B.C.E., reached into

the thousands.135

Some of Jaimini’s interpretative canons can be compared to today’s

canons to illustrate their age and durability. For example:

1. Every word should have a purposeful meaning.

2. The same words should have the same meaning.

3. All ideas should be reconciled with the principal one.

4. Contradiction should not be presumed and reconciliation should be attempted.

5. An interpretation which makes a word or phrase meaningless should be

avoided.136

Socrates

Much of the history of legal interpretation has surrounded the relationship of

judges as interpreters and authors of the text. From at least the time of Plato (427–347

B.C.E.) the function lawgiver has been viewed as the superior branch. Plato describes the

role of judges in a dialogue between the Younger Socrates and the Eleatic Stranger in The

Statesman.137

The Stranger: Once more, let us consider the power of the righteous judge.

Socrates: Very good.

135 Das, Veena. “Language of Sacrifice.” Man: New Series, Vol. 18, No. 3. (Sep., 1983), p. 445, 460. 136 Miller, Geoffrey P. “Pragmatics and the Maxims of Interpretation.” 1990 Wis. L. Rev. 1179, 1183

(Oct. 1990). 137 Plato, Statesman. at 305 in The Dialogues of Plato, fourth ed., trans. Benjamin Jowett (Oxford:

Clarendon Press, 1953), pp. 522-523.

54

The Stranger: Is it [judging] not limited to deciding the dealings of men with one another

to be just or unjust in accordance with the standard which he receives from the King and

legislator. . . refus[ing] to be perverted by gifts, or fears, or pity, or by any sort of favor or

enmity, into deciding the suits of men with one another contrary to the appointment of the

legislator?

Socrates: Yes, his office is such as you describe.

Thus, Plato not only places the legislator above the judge, the latter is completely

dependent on the text as written by the former for guidance. In essence, the judicial

function is merely ministerial. As Benjamin Jowett (1817-1893) explains, just as the

“science which determines whether we are to go to war, is higher than the art of the

general, the science which makes the laws, is higher than that which administers

them.”138

This snippet from Plato’s writings has more to do with a judge’s deference to

the legislator’s command than how to interpret an ambiguous command. Implicit in the

snippet is the presumption that the legislator’s command is unambiguous.

Aristotle

Aristotle addressed the issue of ambiguity by stating in Rhetoric that “if a law is

ambiguous, we shall turn it about and consider which construction best fits the interest of

justice or utility, and then follow that way of looking at it.”139

The issue as to how to

clarify an ambiguity is still very much with us today in the approach by Associate Justice

Stephen Breyer and Aharon Barak, retired president of the Israeli Supreme Court.

138 Jowett, Dialogues of Plato, 446. 139 Indeed, not only did Aristotle give jurors the license to ignore the written law in favor of the universal

law, he held to the notion that all of us “do not regard ourselves as bound to observe a bad law which it was

a mistake ever to pass.” Aristotle, Rhetoric, W. Rhys Roberts, trans. Bk. I, chpt. 15.

55

In Nicomachean Ethics, Plato’s student Aristotle (384–322 B.C.E.) raises the

question of equity and its relation to the positive or written law. At first Aristotle appears

to give license to judges to correct the written law when it contradicts universal or natural

law. The same statement though indicates that where the specific law fails the standard

of the universal law, judges must not follow their own will, but act as the legislator would

if confronted by the unanticipated situation. Aristotle stated,

Equity, though just, is not legal justice, but a rectification of legal justice. The

reason for this is that law is always a general statement, yet there are cases which

it is not possible to cover in a general statement . . . When therefore the law lays

down a general rule, and thereafter a case arises which is an exception to the rule,

it is then right, where the lawgiver’s pronouncement because of its absoluteness

is defective and erroneous, to rectify the defect by deciding as the lawgiver

would himself decide if he were present on the occasion, and would have enacted

if he had been cognizant of the case in question. . . What is itself indefinite can

only be measured by an indefinite standard, like the leaden rule used by Lesbian

builder; just as the rule is not rigid but can be bent to shape of the stone, so a

special ordinance is made to fit the circumstances of the case.140

At another place, Aristotle, wrote that “whenever it is difficult to give a

definition owing to the infinite number of cases . . . Actions which should be leniently

treated are cases for equity . . . and it is equitable to pardon human weaknesses, and to

look, not to the law but to the legislator; not to the letter of the law but to the intention of

the legislator.”141

140 Nicomachean Ethics, v. 10 [v. 14] (1137b 11-33) 141 Rhetoric, I, 13 (1374a-b).

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Aristotle’s treatment of situations of equity, the treatment of individual cases on

the basis of perceived justice even though contrary to the established law, provides a

theoretical foundation for judicial interpretation that does not privilege the text of the law

even as it still privileges the legislator’s (presumed) intention.

In his Rhetoric, Aristotle raised a perpetual interpretative problem that

incorporates a contemporary issue we refer to today as “jury nullification.” Aristotle

stated,

If the written law tells against our case, clearly we must appeal to the universal

law, and insist on its greater equity and justice. We must argue that the juror’s

oath “I will give my verdict according to my honest opinion” means that one will

not simply follow the letter of the written law. We must urge that the principles

of equity are permanent and changeless, and that the universal law does not

change either, for it is the law of nature, whereas the written laws often do

change.142

Jury nullification “has evolved in the Anglo-American system [as] an undoubted jury

prerogative-in-fact, derived from its power to bring in a general verdict of not guilty in a

criminal case, that is not reversible by the court.”143

One of the more famous examples of

jury nullification occurred in the famous 1735 trial of Peter Zenger. The jury acquitted

Zenger, represented by an attorney with the name of Andrew Hamilton, of seditious libel

even though the written law and the judges’ instructions directed otherwise. The famous

American jurist Roscoe Pound (1870-1964), a leading advocate of sociological

jurisprudence, wrote approvingly of the principle of jury nullification. Pound wrote,

142 Aristotle, Rhetoric, W. Rhys Roberts, trans. Bk. I, chpt. 15. 143 U.S. v. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972)

57

“Jury lawlessness is the greatest corrective of law in its actual administration. The will of

the state at large imposed on a reluctant community, the will of a majority imposed on a

vigorous and determined minority, find the same obstacle in the local jury that formerly

confronted kings and ministers.”144

As the D.C. Circuit pointed out in U.S. v. Dougherty, “We are aware of the

number and variety of expressions at that time from respected sources ─ John Adams;

Alexander Hamilton; prominent judges ─ that jurors had a duty to find a verdict

according to their own conscience, though in opposition to the direction of the court; that

their power signified a right; that they were judges both of law and of fact in a criminal

case, and not bound by the opinion of the court.”145

Yet, the acceptance of the

nullification doctrine supposedly came to an end in the federal system with the pivotal

opinion by Justice Story in United States v. Battiste, 2 Sum. 240, 24 F. Cas. 1042

(C.C.D.Mass. 1835) in which he strongly supported the notion that jurors were obligated

to follow the written law as given them by the judge. The U.S. Supreme court later ruled

in Sparf v. United States, 156 U.S. 51 (1895) that the jury [in federal courts] was not to be

instructed that it could ignore the law. Nonetheless, a study by Harry Kalven, Jr. and

Hans Zeisel, for the University of Chicago Jury Project published in The American Jury

revealed that the practice was alive and well as late as the nineteen sixties.146

The study

of the American jury system, undertaken at the University of Chicago Law School, is a

composite analysis of 3576 criminal jury trials, with particular focus on the 1063

instances where the judge reported that he disagreed with the jury verdict, and why. Half

144 Pound, Roscoe. “Law in Books and Law in Action,” 44 Am. L. Rev. 12, 18 (1910) 145 U.S. v. Dougherty, 473 F.2d 1113, 1132 (D.C. Cir. 1972) 146 Kalven, H and H. Zeisel. The American Jury. Little Brown & Company, Boston, 1966

58

these cases present an apparent difference between judge and jury on “sentiments on the

law.” According to some observers, jury nullification, noticeably including its advocacy

by some in the legal community, is on the rise throughout the nation.147

Finally, as the

D.C. Circuit points out in U.S. v. Dougherty, while the right of a jury nullify the written

law may not be a “right” of the jury, it is nonetheless a “power” of the jury.

In the Rhetoric, Aristotle touched on another contentious aspect of legal

interpretation: whether or not a text should be interpreted as written even though it

appears to be outdated. According to Aristotle, “though the law still exists, the situation

to meet which it was passed exists no longer, we must do our best to prove this and to

combat the law thereby.”148

This notion is still around today and is every bit as

controversial as ever. Today, the issue revolves around who should update the law─the

judges or the legislators.

While Aristotle’s comments on the superiority of universal law (equity) over

specific (written) law can be read in two ways, the notion of judges applying the “spirit”

of the law as opposed to the “letter,” which is pretty much the same thing has continued

to have appeal. One prime example is the letter Saint Paul (c. 5-67 C.E.) wrote to the

Corinthians “the letter killeth, but the spirit giveth life.”149

Presumably, without saying as

much, St. Paul directed this injunction to “interpreters” of the text. It appears that Paul is

rejecting the old written word in favor of a new mandate that transcends the written word

of old. Quite obviously, Paul is not sanctioning his mortal interpretation of the immortal

word, but, rather, that of a new legislative authority. Nonetheless, judges to this date

147 Baschab, Judge Pamela. “Jury Nullification: the Anti-Atticus.” 65 Ala. Law 110, (March 2004) 148 Aristotle, Rhetoric, W. Rhys Roberts, trans. Bk. I, chpt. 15. 149 2 Corinthians 3.6 (King James Version).

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have taken Paul’s injunction to sanction judicial interpretation with a view to the spirit

rather than the letter.

A classic example of Paul’s injunction to not let the word control a decision is the

much discussed case of Church of the Holy Trinity v. U.S.150

Holy Trinity involved a

statute that provided that “it shall be unlawful for any person, company, partnership, or

corporation, in any manner whatsoever, to prepay the transportation, or in any way assist

or encourage the importation or migration of any alien or aliens, any foreigner or

foreigners, into the United States . . . under contract or agreement, parol or special,

express or implied . . . to perform labor or service of any kind in the United States.”

Justice David Brewer, writing for the court, stating that “it must be conceded that the act

of the corporation is within the letter of this section,” went on to say that inasmuch

as“this is a Christian nation . . . shall it be believed that a Congress of the United States

intended to make it a misdemeanor for a church of this country to contract for the

services of a Christian minister residing in another nation?” Justice Brewer’s answer was

“no.” Interestingly, Justice Brewer, concluded─not that Congress intent to exclude

contracting with foreign clergy, but the lack of legislative intent to include it: “It is the

duty of the counts, under those circumstances, to say that, however broad the language of

the statute may be, the act, although within the letter, is not within the intention of the

legislature, and therefore cannot be within the statute.”151

150 Church of the Holy Trinity v. U.S., 143 U.S. 457, 471 (1892) 151

143 U.S. 472. Judge Jerome Frank, who served on the Second Circuit Court of Appeals with Learned

Hand for ten years and Hand’s brother Augustus for thirteen, praised the Court’s decision in Holy Trinity because the purpose prevailed over the literal meaning of the text, thus preventing an absurd result that

would have actually defeated legislative intention. (See Frank, Jerome. Courts on Trial: Myth and Reality

in American Justice (Princeton: Princeton University Press, 1949)298-299. However, on another occasion

Judge Frank had the following to say in response to a request to ignore the text and the legislative intent in

(Continued on next page.)

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More recently, Judge Richard Posner of the U.S. Seventh Circuit Court wrote in a

1989 opinion involving the application of the precedent of Elrod v. Burns152

in which the

Supreme Court had interpreted the First Amendment to forbid a public employer to fire

an employee on political grounds unless the employee is either a policy-making

employee or a confidential one. Posner was faced with a public employee, one Byron,

who characterized himself as “a political hack employed in a make-work position doing

virtually nothing in an unnecessary job,” and who had been hired based on political

patronage to “work” for Board of Commissioners of Lake County, Indiana. Posner,

without attribution, opined that “even if Byron's case ─ all equitable considerations

ignored ─ could be fitted within the letter of Elrod, it would not be within its spirit; and

the letter killeth, while the spirit giveth life.”153

Thus, the letter of the law was duly

ignored in favor of the spirit of the law.

Plato seemed to assume that following the law’s command was simply a matter

following the text of the law as given by the lawgiver without any interpretative effort.

Aristotle added the need for including authorial intention to reach a correct understanding

of the written law when the text is obviously capable of rendering more than one

meaning. Aristotle’s separation of the text and the author brings on problems, especialy

for modern judges who must interpret legislative texts where history is unclear about

authorial intent, and where the text has been “authored” by as many as a few hundred

order to do justice: “Such a remaking of the legislation would require consideration of questions of

legislative policy bearing on fiscal and economic matters and on administrative convenience; to discharge

that task efficiently we would be obliged to hold a sort of Congressional Committee hearing, at which all

interested persons would be heard, so as to be sure that our amendments would not entail unforeseen and undesirable results. We have no power to embark on such an enterprise.” Commissioner v. Beck's Estate,

129 F.2d 243, 246 (2nd Cir. 1942). 152 427 U.S. 347, (1976). 153 Byron v. Clay, 867 F.2d 1049 (7th Cir. 1989).

61

legislators. This problem has led U.S. Associate Justice Antonin Scalia to remark, “It is

the law that governs, not the intent of the lawgiver.”154

154 Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton

University Press (1997), p. 17. Much more on this later.

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Middle Ages and the Renaissance

Justinian

Lawgivers have not only considered the process their prerogative, they have been

so possessive as to ban all future commentary or interpretation that could possibly change

the text’s meaning. For example, Justinian (483–565 C.E., Byzantine emperor from 527–

565 C.E.), who brought together a commission to compile the Corpus Juris Civilis, a

sixth-century collection of past laws and commentaries of Roman jurists,155

sought to

preclude any changes that might occur through interpretation. In the De confirmatione

Digestorium (Tanta), Justinian decreed that “none [of] the jurisconsults [judges] of our

time, nor those which will come thereafter do not dare to associate comments

[interpretations] . . . we do not want that one makes other interpretations, which are rather

perversions of the text.”156

Other examples this type of prohibition on interpretation was

contained in the code of Napoleon, a reincarnation of Justinian’s code, and, as Lieber

pointed out, the Austrian Civil Code contained the following prohibition: “The lawgiver

alone has the authority of giving an interpretation of general and binding authority.”157

A more glaring example of the relentless desire to make the law more certain, or

at least to make it reflect the author’s interpretative wishes rather than later commentators

155 The Corpus Juris Civilis consists of four parts. (1) the Codex Constitutionum contains a compilation of

the known, and acceptable, ordinances or constitutions; (2) the Digesta contains a similar collection of

writings of the “authorized” jurists; (3) the Institutiones were elementary outlines and textbooks for use by

students of the law; and (4) the Novellae Constitutiones Post Codicem were the laws enacted by Justinian

between 534 and 565. 156 Constitution « Tanta » Portant Confirmation du Digeste, ( 16 déc. 533 apr. J.-C. ), (Dec 16, 533 apr. J. - C.), §21. From J. Gaudemet, Droit privé romain (Roman private Law), 2nd éd., (Paris, 2000, pp. 314-321,

N. 16), http://web.upmf-grenoble.fr/Haiti/Cours/Ak/Francogallica/Tanta_fran.htm, accessed 6/22/2007 4:58

PM. 157 See Kelly, Historical Interpretation, 654, and Lieber, Hermeneutics, 45.

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is the ban, noted by Lieber, that barred commenting on the Bavarian code in 1814.

Following the adoption of the Code in 1813, the government published the comments

made by King and the king’s council in three volumes entitled “Notes to the Penal Code

for the kingdom of Bavaria.” The government subsequently issued the following order:

We, therefore, direct you, with regard to all points which depend upon the

interpretation of the penal code, the sense and motive of a legal distinction, and

the principles of their application, to refer to the notes . . . and it is our express

order, that besides this exposition . . . no officer of the state, or private scholar,

shall publish a commentary on the penal code, and that courts, in trying and

judging penal case, as well as the professors of our Universities in their lectures,

shall rely exclusively on the text of the code with reference to the notes, so that

the penal code be applied and taught in the same spirit in all parts of the

kingdom, and according to that which we have been pleased to ordain and

explain.158

However, Justinian did recognize the need for interpretation. In the same section,

Justinian expressly places interpretation─when needed─within the lawgiver’s

jurisdiction. When “something seems doubtful, the judges will refer about it to the

emperor, and feel it laws will be fixed by the imperial authority to which only was given

the law to make laws and to interpret them.”159

158 Quoted in Lieber, Hermeneutics, 42-43. 159 Constitution « Tanta » Portant Confirmation du Digeste ( 16 déc. 533 apr. J.-C. ), in J. Gaudemet, Droit

privé romain, 2e éd., Paris, 2000, pp. 314-321, n. 16 ). Université Pierre-Mendès-France, Grenoble,

France, http://web.upmf-grenoble.fr/Haiti/Cours/Ak/Francogallica/Tanta_fran.htm, accessed 6/25/2007

5:30 P.M.

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Justinian’s instructions regarding interpretation illustrate the convoluted

entanglements we get into when we deal with so-called canons of interpretation.

Professor Ian Maclean of Queen’s College, Oxford, relates a rather humorous, though

very instructive, student-teacher dialogue from the eleventh century that illustrates this.

The student selected three of Justinian’s commands, each designating different sources of

interpretation: the Emperor, the judge and custom.160

The student asked the teacher to

reconcile the contradictions. The teacher answered with a bit of casuistry.

There is a form of interpretation which, although it is rightly called interpretation,

has no necessary force, e.g. an interpretation by disputants or teachers. There is a

form of interpretation with necessary force, but which applies only to individual

cases; this is the form practiced by a judge in reaching judgments, but it cannot

be invoked as precedent by other judges. The form of interpretation which has

general force may be exercised by the Emperor alone. Interpretation with

general force is also by custom, except where custom is based on error.

As Maclean points out, it seems that the interpretative game is wide open. 161

Interpreting Justinian

The proscription of Justinian notwithstanding, the Corpus Juris Civilis was

recurrently subjected over the centuries to commentary and ultimate revision through the

process of interpretation by commentators or glossators, as they were called during the

160 The three are: (1) “Emperors alone may investigate the relationship between law and equity.” De

confirmatione Digestorum (Tanta) § 21; C I.14.12; (2) “It is not possible for every point individually to be

covered by laws or in senatus consulta (consultation with the Senate); but if in any case their meaning is

clear, the president of the court shall apply them to similar cases and declare what the law is.” D I.3.12); and “The best interpreter of law is custom.” (D I.3.37). 161 Mcclean, Ian. Interpretation and Meaning in the Rennaissance. Cambridge: Cambridge University

Press, (1992) 52. Mclean cites Hermann Fitting, who in his 1994 edition of Questiones credits the

eleventh-century Italian philosopher Irnerius as the origin of the dialogue.

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Middle Ages beginning in eleventh-century Bologna. According to intellectual historian

professor Donald R. Kelley, although known for their narrow adherence to traditional

teachings, doctrines, or methods, these glossators used interpretation as a way to not only

discover meaning, but to “give applicability to modern society and to even reform and

‘correct’ laws.”162

The subjection of Justinian’s Corpus was especially subject to commentary,

interpretation and revision by the so-called postglossators, who, during the Renaissance

period began to integrate the Corpus into the practical needs of the day.163

As Kelley

points out, Justinian’s prohibition was an illusion to begin with, and updating it was

inevitable due “not only to the instability of the human condition but also because of the

demise of imperial authority.”164

As we will see, this need to “update” the law is still a

raging debate in U.S. jurisprudence, well illustrated by the application of “evolving

standards of decency” regarding the Eight Amendment as applied and resisted by

different members of the U.S. Supreme Court.

Justinian certainly saw the necessity to satisfy needs of a changing later society,

for the Corpus provided that “it is the condition of human law always to decline

162 Kelley, Donald R. “Hermes, Clio, Themis: Historical Interpretation and Legal Hermeneutics.” 55 The

Journal of Modern History (December 1983), pp. 651-652. The notion that jurist respond to political

power will resonate with the modern reader. For as Seventh Circuit Court Judge Richard Posner stated as

recently as 2005 “Almost a quarter century as a federal appellate judge has convinced me that it is rarely

possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly

or incorrectly.” This is so, Posner says, for these cases “They can be decided only on the basis of a

political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.”

“The Supreme Court, 2004 Term: Foreword: A Political Court,” 119 Harvard Law Review (November

2005) 31, 40. 163 Bolognese (Italy) Glossators of the twelfth and thirteenth centuries were so-called because they wrote

glosses (glossae), explanations or translations, by means of a marginal or interlinear note, of a technical or

unusual expression in a manuscript text. 164 Kelley, Hermes, Clio, Themis, p. 651.

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endlessly, no part of it can ever stand unchanged for ever, and nature makes haste to

bring forth many new forms; we expect therefore that subsequent [to our endeavors]

some situations will arise which thus far have not been captured in the web of the law.”165

Yet, the statement does not necessarily require or even sanction judges to make the

necessary allowances for change. It simply recognizes the obvious point that someone

other than the original legislator must do so; but this could be the original legislator’s

successor, or a judge.

Throughout the Middle Ages and Renaissance jurists had at hand interpretative

rules that were used, much as they are today. As Maclean put it, jurists “are not

committed to the belief that such compilations are either complete or even internally

consistent; indeed, they may well be of more use in providing ex post facto justifications

for decisions if they are not.”166

While these centuries did not see the development of

anything close to a general theory of interpretation, the study of grammar, dialectics (as it

relates to formal logic rather than a philosophical explanation for change) and rhetoric

were acknowledged aspects of a legal education. Maclean’s study revealed that a major

preoccupations of the legal community during the medieval and Renaissance period were

its concern for precedent and how to react to Justinian’s ban on interpretation. Regarding

the latter, which Maclean regarded as “a prohibition which threatens the practice of law

in nearly all its forms.” What emerged was “the claim to authority [by jurists] in matters

165 Corpus (C I.17.2.18) 166 Maclean, Interpretation and Meaning, 203.

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of language and meaning which jurists, as judges, interpreters and pedagogues, are

constrained to make.”167

Francisco Suarez

One European theorist that stands out was Francisco Suarez (1548-1617), Spanish

philosopher credited as the founder of international law. In De Legibus (1612), Suarez

catalogued three types of interpretation: authentica, or that which is done by the legislator

or with the legislator’s authority; usualis, that which is the product of usus et consuetudo

(custom); and doctrinalis, that which based on interpretative techniques and has no

special authority. In an attempt to have an authentic interpretation, it is necessary to

know the legislator’s intention when the words are ambiguous. This is to be determined

by examination of the ratio legis, or underlying reason for the law.168

167 Maclean, Interpretation and Meaning, 204. 168 Maclean, Interpretation and meaning, p. 181.

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England in the Fourteenth Century

When we jump across the channel to English soil, we find some material

differences in the legal community. Perhaps the most notable difference is that whereas

jurists on the continent pursued an academic course consisting of grammar, dialectics and

rhetoric, English jurist served what amounted to an apprenticeship where by the end of

the thirteenth century apprentices were put in the charge of a practicing attorney whom

they assisted in return for mentoring. There existed legal education at universities in the

twelfth century. For example, Oxford had a faculty akin to a law school. Students at

university were prone to a course of study comparable to their counterparts on the

Continent. Yet, an event in 1292 turned the budding legal profession from the

Continental model to one uniquely dependent upon the apprenticeship and the Inns of

Court.

In 1292 Edward I issued a royal writ (order) to the judges of the Court of

Common Pleas that provided:

Concerning attorneys and learners (apprentices) the lord King enjoined

Mettingham, Chief Judge and his fellows to provide and ordain at their discretion

a certain number, from every county, of the better, worthier and more promising

students . . . and that those so chosen shall follow the court and take part in its

business.169

169 Quoted in Plucknett, Common Law, 5th ed. (Boston: Little, Brown and Company, 1956), 217-218.

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As Plucknett points out “Disaster or blessing, it is quite clear that the course of English

legal history would have been very different had Edward I looked to the universities

instead of to the crowd of students haunting his courts at Westminster for the future

generations of lawyers.”170

To be sure, the English lawyers were learned persons. They

learned skills relating to what Sir Edward Coke, called “lawyer logicke,” including

“syllogisms, inductions, definitions, descriptions, divisions, etymologies, derivations,

significations.” Yet, as Maclean points out, Coke did not theorize about these lawyer

attributes, he merely mentions them. It was for the young lawyers to acquire such skills

and knowledge vicariously by working with their practicing mentors.171

Plucknett has characterized the reign of Edward I (1272-1307) as “marked by one

of the greatest outbursts of reforming legislation in English history until the nineteenth

century.”172

The interaction between the common law and statutes has and remains ever

since the time of Edward I a contentious issue. During the fourteenth century, the

common law was dominant, while legislation was the budding youngster. By the latter

part of the twentieth century, in the United States, and especially within the national legal

system, it was the reverse: the statutory system was dominant system, the common law

system the shrinking elder.173

Justice Scalia broaches the tension between these two

systems with the subtitle to his book: “Common-Law Courts in a Civil-Law System.”

170 Plucknett, Common Law, 220. 171 Maclean, Interpretation and Meaning, 181. 172 Plucknett, Common Law, 27. 173

One of the most influential state judges, Justice Roger Traynor (1900-1983) who sat on the California

Supreme Court for thirty years described the modern situation as follows: a statute “may cast a heavy shadow on the common law or a light one, or it may idly plane until some incident sends it careening into

action. The hydra-headed problem is how to synchronize the unguided missiles launched by legislatures

with a going system of common law.” Quoted by Calabresi, Guido. A Common Law for the Age of

Statutes. (Cambridge, MA: Harvard University Press, 1982), 183.

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Whereas the early common law judges were jealous of intruding statutes, Justice Scalia

resents the lingering effect of a common law attitude where many judges appear to ignore

the plain language of a statutory text in order to arrive at a desired result.

Common law lawyers and judges in England were much more concerned with

“doing” law rather than “analyzing” law, leading to the astute observation that the “life of

the [common] law has not been logic: it has been experience.”174

As a result of this

aspect of common law jurisprudence, there was little effort to theorize about the

interpretative process. A good example of the uniqueness of the English common law is

contained in a description of Lord Mansfield’s attempt to rationalize the common law

according to the rules of logic by the noted legal historian, Sir William S. Holdsworth

(1871–1944).

An attempt to rationalize these branches of the [common] law by help of

pure reason and foreign analogies could not succeed, because the principles

founded on this basis could be proved to be contrary to ascertained principles of

the common law.175

Plucknett, referring to the time of Edward I (1239-1307) stated that “the problem of

dealing with the new statute law was urgent and demanded action at once, and that the

medieval mind, ever anxious to get things done efficiently before speculating about them,

174 Holmes, O.W., Jr. Common Law. (Boston: Little, Brown, and Company, 1881), p. 1. 175 Quoted in Plucknett, Common Law, p. 250.

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set to work administering the statutes as well as it could, and cared little for the niceties

of jurisprudence and political science.”176

Three stages of interpreting legislative intention.

Judges as part of the legislative process.

One of the most important developments during the fourteenth-century reigns of

Edward I, II and III (1272-1399) was the evolution of the concept of legislative intent.177

As late as the reign of Edward II, judges were also members of the legislative process.

This dual capacity enabled the judges to have a personal, direct acquaintance with

“legislative intent.” For example, the famous judge Radulphi de Hengham opined in a

case that “We agreed in Parliament that the wife, if not named in the writ, should not be

received [in court.”178

On another occasion, Hengham admonished one of the litigants by

asserting “Do not gloss [meaning interpret] the statute for we know better than you; we

176 Plucknett, Statutes & Their Interpretation in the First Half of the Fourteenth Century. (Cambridge, UK:

The University Press, 1922), p. 169. 177 A note on “statutes.” Following the Norman invasion, it became the practice of kings to issue “charters” or grants of rights to their subjects. At times these grants were called “concordants” or agreements between

king and subjects. Some examples are the Constitution of Clarendon (1164) that included the rules that

Henry II wanted (and expected) the church to accept, the Provisions of Oxfords (1258) that, although not

successful, placed much of the governance in the hands of a rebellious group of barons, and the Provisions

of Westminster (1259) that contained reforms brought on by the parliament that met at the time restricting

the king in certain grants land, that later found their way into the Statute of Marlborough 1267. Thus, what

are sometimes referred to as statutes are not so in the modern sense of the term. By the time of Edward I,

the king was “laws” with the assent of the great council or Parliament, and they were beginning to be called

statutes. For the time, however, it was common for the king to issue proclamations, the king and council to

issue ordinances and Parliament to enact measures, all of which might be referred to as statutes. By the

middle of the fifteenth century enactment of statutes by Parliament became the primary source of statutory

law. For more on the evolution of “statute” as a form of law, see Smith, Goldwin. A Constitutional and Legal History of England. (NY: Charles Scribner’s Sons, 1955) 178 Anon. v. Thomas the Notary, Y.B. 32 & 33 Edw I., 429. Hengham was alternately the chief judge of the

Kings Bench then Common Pleas. He produced two significant works: on the method of conducting

actions entitled Summa Magna and Summa Parva.

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made it.”179

According to Plucknett, this dual rôle of the judges “lasts until the early

years of Edward II’s reign and represents the period during which the judiciary had no

difficulty whatever in discussing the intention of the legislature since the judges

themselves bore the principal share in lawmaking.”180

Judges, not part of the legislative process relying in those that were.

As judges began to separate from the legislative process, they continued to rely on the

tradition, teaching and instructions of the recent judges that had assumed the dual rôle of

lawmaker and law interpreter. An example of this secondhand method is seen in the

remarks from the bench by a Judge Shareshulle responded to a litigants interpretation of

the statute De Donis as follows:

Perhaps [it is] so, for Hilary and I pleaded that before Scrope, J. in the Eyre

[court] of Northhampton because we had nothing better to say. . . and we were

adjourned here before Herle, J. and he said that the strongest argument he knew

against us was that [Judge] Hengham who made the statute read it another

way.”181

Plucknett has pointed out an excellent example of just how far a field judges can

go─even at this early date─from the text in determining legislative intention. Put

differently, it illustrates how judges can use “legislative intention” to reach an

interpretation that the text clearly cannot support. This illustration involves De Donis, a

statute written by Hengham and enacted in 1285 that permitted the seller of land to

179 Aumeye v. Anon., Y.B. 33 & 35 Edw. I, 82 Westminster II, c.2) 180 Plucknett, Statutes and their Interpretation, 49. 181 Quoted in Plucknett, Statutes and their Interpretation, 51.

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restrict the ability of the buyer from selling the property. The restriction required the

property to go to the buyer’s issue (children). Part of the restriction permitted the seller

to retake the land if the buyer had no issue. At the time, the term “issue” included only

the first degree or generation of descendants. Thus, as written, the restriction prevented

the buyer from defeating his immediate heir, but it did not prevent the heir from selling it.

In a trial before William de Bereford, Chief Judge of Common Pleas, the claim

was made that the statute did not prohibit the issue of the buyer from selling the land.

The judge agreed that if the literal meaning is followed, the heir can sell the land.

Nonetheless, the judge chose to ignore the statute’s literal meaning and determined that

He that made [or wrote] the statute meant to bind the issue in fee tail (an estate

limited to inheritance by a particular class) as well as the feoffees (buyer) until

the tail has reached the fourth degree, and it was only through the negligence that

he omitted to insert express words in the statute to that effect.182

It is worth noting that Bereford made a rather bold assertion of judicial power when it

comes to authority to interpret the law. According to the reporter, “Bereford said that the

powers of a medieval Justice in interpreting the law, whether statute law or common law,

seemed to have been recognized as plenary.”183

In another case in which the chief judge

182 Belyng v. Anon., Y.B. 5 Edw. II, 176-177 (Common Pleas 1312) This bit of mental gymnastics

reminded me of a statement by Sixth Circuit Judge Albert J. Engel, Jr. who made the following statement:

“We agree with the trial court that an examination of the legislative history of [the statute] reveals no

discussion of the actual meaning of the phrase ‘in any court.’ At the same time, it is equally evident that

the cited language in section 922 [of the statute] was not intended by the Congress to be limited only to

convictions by the courts of the United States or of a state or political subdivision thereof.” U.S. v. Winson,

793 F.2d 754, 757 (6th Cir. 1986) 183 This position is similar to the principle of casus omissus, namely, the position that judges may resort to

the common law to correct a statute when it encounters a situation deemed to have been omitted from or

not provided for by statute. This doctrine was rejected in England as early as 1785 in Jones v. Smart, 1.

T.R. 52, wherein Buller stated, that to supply the “omission would be tantatmount to “usurpation of or

(Continued on next page.)

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presided, it was stated that “a statute cannot be invoked in every circumstances where

hardship can be assigned . . . it seems to me that for this very reason [the claimant] should

be helped, because they who made the Statute could not bear in mind every case that

might occur.”184

Judges inferring the text’s meaning from the text itself.

By the time of Edward III, things were changing; judges were routinely inferring

a statute’s meaning from the text itself without the assistance of personal knowledge or

tradition derived directly from those with personal knowledge. As Plucknett points out,

there was always overlap between a broad and a strict construction of statutes, but as the

“period advances, however, the judges begin to show a decided preference for one policy,

namely, that of strict interpretation.”185

An early example involves two statutes. One

permitted a “reversion,” which is the return of property to the grantor or the grantor's

heirs after the particular interest granted expires, for example in an estate for life, the

property will revert to the grantor upon the death of the grantee.186

The other statute

refers to “similar cases” mentioned in the earlier statute.187

A litigant sought to have a

“remainder” (second statute) treated as a reversion (first statute). A remainder is a future

interest held by one other than the grantor that is to take effect, say for instance, on the

death of a life tenant─a slight difference. Nonetheless, Judge Hervey Staunton of

incroachment upon the power of the legislature.” The doctrine was rejected by the U.S. Supreme Court in

the early part of the nineteenth century in an opinion written by Justice Story who opined that “Neither can

this Court supply a casus omissus in a treaty, any more than in a law. We are to find out the intention of

the parties by just rules of interpretation applied to the subject matter; and having found that, our duty is to

follow it as far as it goes, and to stop where that stops -- whatever may be the imperfections or difficulties

which it leaves behind.” The Amiable Isabella, 6 Wheat. 1, 71 (1821). 184 Mauleverer v. Favelthrop, Y.B. 11 Edw. II, 34-39 (Common Pleas 1317). 185 Plucknett, Statutes and their Interpretation, 82. 186 Statue of Gloucester, 6 Edw. I, c. 7 (1278). 187 Statute of Westminster II, 13 Edw. I, c. 24 (1285).

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Common Pleas confronted with a claim that the remainder was similar to the reversion

gave it short shrift stating, “your writ purports to be founded on a statute and is not

warranted by the statute.” Chief Justice Bereford, whom we have seen exhibited no

compunction to construe a statute broadly, nevertheless stated “at common law you have

no writ, and if you rely on statute it must be on some words comprised in the statute; but

the statute does nothing for you, it only says that if a tenant in dower alienates, the

reversioner (can recover at once); your case [viz., a remainder situation] is not like the

case mentioned in the statute.”188

One can only speculate, given his opinion in Belyng v.

Anon.(see footnote 182 above) what the Chief Judge might have ruled if the statute had

changed the common law.

Another interesting example of strict construction involves the efforts of a

manorial lord to take action against his bailiff, the administrative officer of the manor, to

recover for the bailiff’s dishonesty. The common law writ of Account was sometimes

useless because it required the lord to seek to satisfy a claim against the land of the

bailiff. When, as was often the case, the bailiff had no land, the lord had no effective

remedy. To correct this situation, a statute was enacted to permit the lord to take action

(Monstravit de Compoto) against the bailiff’s personal estate if there was no real estate

available.189

In our example, the statute had the opposite effect. The lord complained

that the statute enabled the bailiff, who had a sizeable personal estate, to acquire a

minimal amount of land with a value unable to satisfy the lord’s financial loss, thus

enabling a bailiff to defeat a lord’s claim for two hundred pounds by owning two acres

188 Devereux v. Anon., Y.B. 3 Edw. II, 16-19 (1310). 189 Statute of Marlborough, 52 Hen. 3, ch. 23 (1267)

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worth two pennyworth of rental income. The court held that the statute permitting direct

action against the bailiff’s personal estate “is given by statute where (the defendant

bailiff) does not have any land or tenements; the statute says nothing of sufficiency and

makes for us; to maintain this writ of [Monstravit de Compoto] would prejudice the

king,” who issued the statute.”190

Samuel E. Thorne’s Anonymous

Samuel E. Thorne (1907-1994), noted legal historian has described this period as

devoid of abstract thought about the rôle of statutes. He states that “in most instances

discussion [by judges] was restricted simply to the specific content of the enactment in

question.”191

The statute was in effect just another aspect to consider in determining that

the proper outcome of a law─statutory or common─was deemed by the judge as

desirable. Thorne described it the “attention of judges was directed primarily to the

simple administration of justice between party and party. If a statute led to a legally

reasonable result it extended to [the subject matter]; if it infringed rights or produced

injustice there, it did not.”192

Thorne went so far as to assert that during the Year Book

era statutes were “merely suggestions of policy to be treated with an easy unconcern as to

their precise content.”193

190

Box v. Anon., Y.B. 3 Edw. II, 91-92 (1310). 191 Anon. A Discourse upon the Exposicion & Understanding of Statutes, circa 1557-1567. Thorne, Samuel E., ed. (San Marino, Calif. Huntington Library, 1942) 21. When there is a reference to Thorne’s extended

introduction to this work, it will be cited as “Thorne, Discourse.” 192 Thorne, Discourse, 22. 193 Thorne, Discourse, 42.

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England in the Sixteenth Century

It was noted that Thorne has shown that the Year Book era was a “transitional

period, in which both old and new ideas of Parliament existed side by side, [a time when]

a theory phrased to meet the demands of a completely developed parliamentary

sovereignty was not [yet] needed and was not formulated.”194

Thus, according to Thorne,

“history of statutory interpretation begins in the sixteenth century, after the Year Books

had come to a close and the great outburst of legislation that marks the reign of Henry

VIII (1509-1547) had been concluded.”195

Judges of the sixteenth century, unlike judges

in the Year Book era, began to grapple with the tension between the perceived ends of

justice and the dictates of the statutory text. Thorne points out that although Plucknett

found that the further from the source of legislation judges became, the more they would

tend to create interpretative rules for the statutes,196

this did not actually happen during

the Year Book era. It was not until the time of Henry VIII that “the technical equipment

of judges vigorously and extended in that direction.”197

Thorne gives a parallel

relationship to the “growing sanction back of parliamentary enactments that appear in the

sixteenth century” and the “more complex explanations used to account for” judicial

decisions involving the enactments.198

To be sure Thorne’s thesis that judicial interpretation of statues did not begin until

the sixteenth century was not accepted by all. In fact, some major scholars, like Sir

William Searle Holdsworth (1871–1944), author of the twelve-volume History of English

194 Thorne, Discourse, 22. 195 Thorne, Discourse, 3. 196 Plucknett, Statutes, 56. 197 Thorne, Discourse, 8. 198 Thorne, Discourse, 75.

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Law (1903-1938), vehemently disagreed saying, “some of the principles of interpretation

are medieval in their origin, and . . . medieval judges did not materially differ in their

approach to the statutes from their successors in the sixteenth century.”199

In any event, Thorne’s presentation of A Discourse upon the Exposicion &

Understanding of Statutes, written by an unknown author perhaps between 1557 and

1567, reveal some significant rules of statutory interpretation.200

Some examples of the

interpretative rules set out in the Discourse involve: (1) the distinction between general

and express statutes; (2) the distinction between affirmative and negatives acts; (3) the

distinction between penal and beneficial or remedial acts; and (4) the inclusion of

analogous cases within the purview of an act.

The Discourse’s distinction between “general” and “express” statutes can yield

the same result that could be just as well be reached by a Year-Book-era judge, but by

using a supposedly superior theory. For example, during the Year Book era, the statutory

action of waste by a landlord against a tenant for the reduction in the value of an estate

caused by the act or negligence of the tenant did not lie against one holding in ancient

demesne,201

which Thorne says was based on the fact that the tenants in ancient demesne

claimed that they were not represented in Parliament, thus not a party to the statute.

Thorne reports that by the sixteenth century, the interpretative theory or explanation for

199 W.S. Holdsworth, review of Discourses upon the Exposition and Understanding of Statutes, Samuel E.

Thorne, ed., The English Historical Review, Vol. 58, No. 229 (Jan. 1943), 107. 200 Sir Thomas Egerton (1540-1617), later Lord Ellesmere and lord chancellor, made use of the Discourse

while a student, making notes and comments in the margin. It was during Ellesmere’s chancellorship that

the Chancery Court achieved undeniable independence from the common law courts. While Coke as chief

justice and high priest of the Court of Common Pleas and Ellesmere as Chancellor were in a standoff,

James I sided with Ellesmere on the advice of the Attorney General, Sir Francis Bacon. 201

Ancient demesne was an estate or manor held by the at the time of the Norman invasion and

recorded in the Domesday Book, the tenants of which had certain privileges by virtue of manner in which

the estate was held.

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the exception was based on the distinction between general and express statutes. The

Discourse establishes that “by generall wordes in a statute, pryvate mens intereses [will]

be not taken awaie, nothwithstandinge that which is commenlye sayde, that everye man

ys partie & privie to an acte of Parlemente.”202

The Discourse distinguished statutes that were “affirmative” and “negative,”

stating that “an estatute in the affirmative doeth not take awaie neither the commen lawe

nor other statue that were made before. . . But, contrarywyse, the statute in the negative:

that deniethe & takethe awaie also the common law.”203

Thorne explains that during the

Year Book era, the decision as to whether or not the common law procedure would

remain available in the face of a statute covering the subject turned, not on the

interpretative principle or rule regarding the affirmative or negative form of the statute,

but, rather, “on practical, legal considerations raised by the facts of the particular

case.”204

Thorne draws the conclusion that the fact that “no judge or sergeant (attorney)

had regarded the nonextention of an act to ancient demesne as an ‘exception out’ of the

statute, accomplished through an exercise of judicial [interpretation] might have been

acceptable in the Year Book era. However, with the increasing importance of Parliament

a rule which stressed the powers of judges was not likely to meet with marked

success.”205

In other words, as the status of parliament and parliamentary enactments

changed, the judges had to change their attitude to the statutes from one of indifference to

one of sensitivity. Sensitivity, that is, to explaining their application of the statute in

202 Anon., Discourse, 164. 203 Anon., Discourse, 117, 119 204 Thorne, Discourse, 39. 205 Thorne, Discourse, 29.

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theoretical terms. The emergence of the so-called new rules of interpretation, Thorne

claimed was “in response to the growth of the doctrine that all the king’s subjects [were]

bound by acts of Parliament.”206

`

206 Thorne, Discourse, 30.

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England in the Eighteenth Century

By the eighteenth century, statutes were becoming increasingly prevalent.

Lieberman characterized statutes as “already a principal source of English law.”207

Not

only were statutes proliferating, their written form proved to be problematic. Jeremy

Bentham characterized them in the following manner:

In no book that ever saw the light of day will the reader find examples of

nonsense so unfathomable as what is frequently to be met with in our Statute

book. Because there is no Style so repugnant to every purpose of language as

that which distinguishes and disgraces the work of our Legislature.208

According to Lieberman, these factors brought on rules of construction as an aid in

determining the meaning of statutory texts. Several of these rules of construction were

catalogued by the English jurist and legal scholar Sir William Blackstone (1723-1780)

who had a major influence in the United States. 209

Sir William Blackstone

Blackstone divides statutes into two principal categories: those that are

declaration of common law and those that are remedial of some defect within the

common law. The need for declaratory statutes exist when the common law has fallen

into disuse and/or has become disputable. Blackstone give the following reasons for the

207 Lieberman, David. The Province of Legislation Determined: Legal Theory in Eighteenth-Century

Britain. (Cambridge: Cambridge University Press, 1989), 16. 208 Quoted in Lieberman, Province of Legislation Determined, 18. 209

“English common-law view of the public trial early was transplanted to the American Colonies, largely

through the influence of the common-law writers whose views shaped the early American legal systems.” “Coke's Institutes were read in the American Colonies by virtually every student of the law," Klopfer v.

North Carolina, 386 U.S. 213, 225 (1967), and no citation is needed to establish the impact of Hale and

Blackstone on colonial legal thought.” Justice Blackmun (dissenting) in Gannett Co. v. Depasquale, 443

U.S. 368, 424 (1979).

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need of remedial statutes: (1) “imperfection of all human laws;” (2) “Change of time and

circumstances;” (3) “mistakes and unadvised determination of unlearned judges,” or (4)

“any other cause whatsoever.”210

Following is a list of some of Blackstone’s rules of construction contained in the

Introduction to the Commentaries:

1. A statute which treats of things or persons of an inferior rank, cannot by

any general words be extended to those of a superior.

2. Penal statutes must be construed strictly.

3. Statutes against frauds are to be liberally and beneficially expounded.

Even though statutes against fraud are penal in nature, Blackstone

distinguishes them from other penal statutes on the basis that the latter

acts upon the offender and the former on the transaction by setting them

aside.

4. One part of a statute must be so construed by another, that the whole may

if possible stand.

5. Where the common law and a statute differ, the common law gives place

to the statute, and an old statute gives place to a new one when there is a

conflict.

6. If a statute repeals another is itself repealed the first statute is

automatically revived.

210 Blackstone, Sir William. Commentaries on the Laws of England, Introduction. (Princeton: The Avalon

Project at Yale Law School, 1996-2007) p. 86,

http://www.yale.edu/lawweb/avalon/blackstone/introa.htm#4, accessed 9/21/2007 2:46 PM. When we read

that the legislature could also enact legislation for “any cause whatsoever” we might have cause to think

the previous reasons have been rendered superfluous. We should not be so quick. As we will see, there is

a rule of construction that states that every part of the text should be rendered useful and not superfluous. In order to satisfy this rule of construction, we will find a support in another rule of construction with a

fancy Latin name, ejusdem generis which literally means “of the same kind or class.” Ejusdem generis

limits the general catch-all words “any cause whatsoever” to any cause whatsoever so long as it is of the

same kind or class belong to the group specifically mentioned.

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7. Statutes that are impossible to be performed have no validity.

8. If the application statutes result in absurd consequences, they are void.211

Blackstone hedges on the last one mentioned by saying in a famous passage that

has been at the heart of a controversial divide in judicial interpretation through the ages

that,

I lay down the rule [number 8 above] with these restrictions; though I know it is

generally laid down more largely, that acts of parliament contrary to reason are

void. But if the parliament will positively enact a thing to be done which is

unreasonable, I know of no power that can control it : and the examples usually

alleged in support of this sense of the rule do none of them prove, that where the

main object of a statute is unreasonable the judges are at liberty to reject it ; for

that were to set the judicial power above that of the legislature, which would be

subversive of all government. But where some collateral matter arises out of the

general words, and happens to be unreasonable ; there the judges are in decency

to conclude that this consequence was not foreseen by the parliament, and

therefore they are at liberty to expound the statute by equity, and only [to this

extent] disregard it. Thus if an act of parliament gives a man power to try all

causes, that arise within his manor of Dale; yet, if a cause should arise in which

he himself is party, the act is construed not to extend to that; because it is

unreasonable that any man should determine his own quarrel. But, if we could

conceive it possible for the parliament to enact, that he should try as well his own

causes as those of other persons, there is no court that has power to defeat the

211 All of these rules of construction are taken from the Introduction to the Commentaries, pp. 88-91.

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intent of the legislature, when couched in such evident and express words, as

leave no doubt whether it was the intent of the legislature or no.212

One of those whom Blackstone says have “generally laid down more largely that

acts of Parliament contrary to reason are void” is none other than Sir Edward Coke who

asserted as Chief Justice of the Court of Common Pleas in the famous Dr. Bonham’s

Case that “the common law will controul acts of parliament, and sometimes adjudge

them to be utterly void: for when an act of parliament is against common right and

reason, or repugnant, or impossible to be performed, the common law will controul it,

and adjudge such act to be void.”213

In the Commentaries Blackstone had named three things a judge should consider

when construing a remedial statute: the old or existing law, the mischief to be addressed

and the remedy provided by the legislature. “It is the business of the judges so to

construe the act, as to suppress the mischief and advance the remedy.”214

Years prior to

Blackstone’s Commentaries, Coke had reported that the Court of Exchequer in 1584

listed these three aspects of statutory interpretation that contained a fourth item that

judges should consider, namely,

The true reason and remedy; and then the office of all the Judges is always to

make such construction as shall suppress the mischief, and advance the remedy,

and to suppress subtle inventions and evasions for continuance of the mischief,

and pro privato commodo [for private benefit], and to add force and life to the

212 Blackstone, Introduction to the Commentaries, 91. 213 8 Co. Rep. 107a (1610) Coke’s reliance on precedent has been questioned by some. See Plucknett,

Statutes & Their Interpretation, 68-70. 214 Blackstone, Commentaries, Intro. p. 87.

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cure and remedy, according to the true intent of the makers of the Act, pro bono

publico [for the public benefit].215

215 Heydon’s Case, 3 Co. Rep. 7a (1584)

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The United States in the Nineteenth Century

The Colonial Legacy

In England by the eighteenth century, the ascendancy of Parliament as the

embodiment of the supreme fountain of law was so complete that the notion of a written

constitution that is superior to all parts of the governing process was obsolete. In

England, to say that something was constitutional was simply to say that it was legal.

The entire body of law: royal charters, common law and parliamentary enactments were

all part of the constitution. “Parliament could now actually create new law whose

binding force came not from its intrinsic justice and conformity to the principles of the

common law, but from its embodiment of the will of the social constituents of the nation

or from simply by its sovereign authority.”

This was not so in England’s North American colonies. The situation there was

not so clear-cut. On the one hand, the closer the colonists came to the revolution, to more

they relied on the common law as the supreme fountain of law. As James Otis argued

against the Writs of Assistance, invoking Coke, “an act against the Constitution [the

common law view as the embodiment of what is right and reason] is void.” On the other

hand, there were those like Massachusetts Chief Justice Thomas Hutchinson, the judge in

the Writs of Assistance case, who declared as later as 1767 that “laws should be

established, else Judges and Juries must go according to their Reason, that is, their Will.”

To be sure, Hutchinson was in the employ of the Crown. Nonetheless, his sentiments

were echoed two decades following the Declaration of Independence by Supreme Court

Justice James Iredell, who wrote, “that the distinct boundaries of law and Legislation may

be confounded, in a manner that would make Courts arbitrary, and in effect makers of a

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new law, instead of being (as certainly they alone ought to be) expositors of an existing

one.” Chisholm v. Georgia, 2 U.S. 419, 448 (1793)

[look at the debate over declaring the existing law and making prospective law.]

The Federalist Era

The Federalist Papers

Hamilton writing in The Federalist was inclined to give the judiciary a more

pronounced rôle. Moreover, his remarks revealed his opinion that the process of

interpretation did not yield a precise produce. Hamilton wrote in Number 22, “laws are a

dead letter without courts to expound and define their true meaning and operation.”

Hamilton went on to explain the need for a supreme tribunal in terms that would have

later pleased Humpty Dumpty, stating that since “there are endless diversities in the

opinion of men. We often see not only different courts but judges of the same court of

the same court differing from each other.” Thus, it is “necessary to establish one court

paramount to the rest, possessing a general superintendence, and authorized to settle and

declare in the last resort a uniform rule of civil justice.”216

Justice Jackson Associate Justice of the U.S. Supreme Court described the result

of the interpretative process in much the same way: “We are not final because we are

infallible, but we are infallible only because we are final.” Examining Justice Jackson’s

full statement on this point is worthwhile. He wrote that, “Whenever decisions of one

court are reviewed by another, a percentage of them are reversed. That reflects a

216

As you will recall, Humpty in Lewis Carroll’s Through the Looking-Glass and What Alice Found There

(1872) said to Alice when she disputed his use of a word because she thought that it did not have the meaning he assigned, “When I use a word, it means just what I choose it to mean—neither more nor less.”

Alice questioning whether Humpty had the ability to give words their meaning replied, “The question is

whether you CAN make words mean so many different things.” Humpty, in turn, declared, “The question

is, which is to be master—that’s all.”

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difference in outlook normally found between personnel comprising different courts.

However, reversal by a higher court is not proof that justice is thereby better done. There

is no doubt that if there were a super-Supreme Court, a substantial proportion of our

reversals of state courts would also be reversed.”.217

On this issue, Justice Scalia sides with Alice. Describing Humpty’s assertion as

“hilarious nonsense,” he wrote, “Alice and I believe that words, like other conventional

symbols, do convey meaning, an objective meaning, regardless of what their author

‘intends’ them to mean.”218

James Madison in Number 37 recognized the opaque nature of a statutory text

until it becomes embedded in a factual situation by judicial action. “All new laws,

though penned with the greatest technical skill, and passed on the fullest and most mature

deliberation, are considered as more or less obscure and equivocal, until their meaning be

liquidated and ascertained by a series of particular discussions and adjudication.”

Hamilton in Number 22, stated, “laws are a dead letter without courts to expound and

define their true meaning and operation.”

The Constitution does not contain instructions on how it is to be interpreted.

Furthermore, it does not even explicitly identify which branch has the ultimate authority

217

Brown v. Allen, 344 U.S. 443, 540 (1953) The Humpty Dumpty rule was, nonetheless, rejected by

Chief Justice Burger in Tennessee Valley Authority v. Hill, 437 U.S. 153, 174 when he rejected a definition

of “action” by Justice Powell with the following statement: “In dissent, Mr. Justice Powell argues that the

meaning of ‘actions’ in § 7 is ‘far from 'plain,’ and that ‘it seems evident that the 'actions' referred to are not

all actions that an agency can ever take, but rather actions that the agency is deciding whether to authorize,

to fund, or to carry out.’ Aside from this bare assertion, however, no explanation is given to support the

proffered interpretation. This recalls Lewis Carroll's classic advice on the construction of language:

‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to

mean -- neither more nor less.’" The fact that the Chief Justice was in the majority and Justice Powell in the minority leads one to imagine just who is Humpty and who is not.” 218 Scalia, Antonin, “Law & Language.” “First Things First: The Journal of Religion, Culture, and Public

Life.” (November, 2005). http://www.firstthings.com/article.php3?id_article=245, (accessed 12/17/2007

3:53 P.M.)

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regarding interpreting the text. Right off the bat, this omission led Anti-Federalist Robert

Yates to complain in what today we refer to as an Oped piece (a critical opinion essay)

about the lack of any guidance on how to interpret that would control judicial

interpretative results.

They [judges] will give the sense of every article of the constitution, that may

from time to time come before them. And in their decisions they will not confine

themselves to any fixed or established rules, but will determine according to what

appears to them, the reason and spirit of the constitution. The opinions of the

supreme court, whatever they may be, will have the force of law; because there is

no power provided in the constitution, that can correct their errors, or control

their adjudications.219

The Anti-Federalists were also concerned that judges would have life tenure. In

Federalist Number 78, Hamilton, defending tenure during good behavior, stated that it

was a necessary to counter “the encroachments and oppressions of the representative

body.” This appeared to be a very significant departure from the long history of the

relationship between the legislator and the judge.220

However, while Hamilton may have

elevated the judiciary above the legislature, he nonetheless considered them to be the

agent of the people. Hamilton asserted that since the “interpretation of the law is the

proper and peculiar province of the courts, . . . it therefore belongs to them to ascertain its

meaning, as well as the meaning of any particular act proceeding from the legislature.”

219 The New York Journal and Weekly Register, January 31, 1788. Quoted in The Federalist by Alexander Hamilton, James Madison and John Jay, Benjamin Fletcher Wright, ed. (New York: Barnes & Noble,

1996), p.74. 220 Hamilton insisted nonetheless that with neither the “sword” of the executive branch nor the “will” of the

legislative branch, the judicial branch would be “the least dangerous” branch.

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Moreover, if there is a variance between the Constitution adopted by the people and a

statute enacted by the Congress, the “Constitution ought to be preferred to the statute, the

intention of the people to the intention of their agents.”221

Thus, the “who” remains the lawgiver(s). It would follow, then, that in cases

where Congress enacts a law that is not at variance with the Constitution, as the lawgiver,

the will of Congress would trump the discretion of judges. In short, by implication

judges in both situations would not be considered by Hamilton to be superior to the

respective lawgiver. As he put it, “Nor does this conclusions by any means suppose a

superiority of the judicial to the legislative power. It only supposes the power of the

people is superior to both.”222

In point of fact, in Federalist Number 81, Hamilton mentions the criticism by

Yates’s criticism─though not by name. In this essay, Hamilton, seeks to overcome the

criticism of the Anti-Federalists that the Supreme Court is not part of the legislature as

was the House of Lords in England and some state legislatures, including New York.223

This meant, as with the House of Lords in England, the highest level of legislative

authority would also have the ultimate say in judicial matters. Hamilton took the position

221 Federalist Number 78 was published between June and August of 1888 in New York’s Independent

Journal and The New York Packet. 222 Quotations from The Federalist Papers are taken from the McLean’s Edition as contained in the Avalon

Project at Yale Law School. http://www.yale.edu/lawweb/avalon/federal/fed.htm, accessed 6/28/2007 3:11

P.M. 223 The involvement of the House of Lords in judicial affairs goes back as far as the Norman institution of

the magnum concilium (the Great Council) that arose out of the practice of kings seeking formal approval

of taxes from knights from the counties that gathered to “advise” the king on financial matters. Edward I

(1272-1307) formalized the magnum concilium and the Curia Regis with the former more concerned with

legislative matters, the latter with judicial matters. The Curia Regis became known as concilium regis in

parliamento (the king’s council in parliament) and as such the judicial officers were simultaneously legislative advisers. Thus, as we see elsewhere, the legislators were often the same persons that interpreted

the meaning of legislation. Eventually the Curia Regis became today’s High Courts of Justice (Queen’s

Bench, Chancery and Family Court), while the House of Lords maintained both a limited legislative and

judicial function in the British legal system.

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that one could hardly expect any independent action by a judge that was part of the

legislative process.

There are three reasons for Hamilton’s proposition. One is the lack of detachment

necessary for independent consideration. Second, is the problem of having the judicial

office in a body that has a limited term of office. Third, legislative officials are not as

likely to possess the requisite legal knowledge and skills. Of course, when Hamilton

considers judicial independence, he is concerned with, or even makes the assumption, of

legislation that contradicts the Constitution. When Plucknett describes the judges of

Edward I’s day, the focus was on the ability of the judge qua legislator to know what the

legislative text meant.

Hamilton takes on another criticism that is still around in the twenty-first century.

That is the alleged propensity of judges to “make” law rather than simply interpret the

law, or in Hamilton’s words, “the supposed danger of judiciary encroachments on the

legislative authority.” Hamilton begins the defense by classifying the criticism as “in

reality a phantom.” He goes on to say judges will be unable to encroach upon the

legislature, and that his conclusion may be inferred with certainty, from the general

nature of the judicial power, form the objects to which it relates, from the manner in

which it is exercised, from its comparative weakness, and from its total incapacity to

support its usurpation by force.” Hamilton also give credence to the “important

constitutional check which the power of instituting impeachments in one part of the

legislative body, and of determining upon them in the other, would give” the legislative

body a distinct advantage in maintaining its legislative superiority.

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Just as when the Emperor was making the law and accessible to interpret it as its

author, judges in the Edwardian era were also parts of the lawmaking process thus

accessible to interpret as authors. What is different when we reach the time of separation

of lawmaker and judge, is just that─the two functions are separate, and the only thing a

judge can do is to interpret a text, which brings on the other major question, namely, how

are judges to go about the interpretative process. Not only are present-day lawgivers

separated from the interpreters, the lawgivers are, on the one hand, too numerous to have

a single intention, and on the other, especially regarding the Constitution, their text too

remote to be relevant to contemporary issues

It should come as no surprise, then, to consider what Chief Justice John

Marshall’s 1803 opinion in Marbury v. Madison did to the separate but equal and the

checks and balances doctrines. Marshall, in the opinion that established judicial

superiority in constitutional interpretation, stated, “It is emphatically the province and

duty of the judicial department to say what the law is. Those who apply the rule to

particular cases, must of necessity expound and interpret that rule. . . This is of the very

essence of judicial duty. If then the courts are to regard the constitution; and the

constitution is superior to any ordinary act of the legislature; the constitution, and not

such ordinary act, must govern the case to which they both apply.”224

In Number 78, Hamilton, arguing for an independent judiciary made so primarily

by the judges’ lifetime tenure, broached the issue of judicial discretion. He asserted,

224

Marbury v. Madison, 5 U.S. 137, 77-178 (1803). Students will encounter commentators and judges that

associate Marbury’s judicial review with Sir Edward Coke’s notorious statement in Dr Bohnam’s Case, 8 Co. Rep. 107a (1610) that “when an act of parliament is against common right and reason,

or is repugnant, or impossible to be performed, the common law will controul it, and adjudge such

act to be void.” See e.g., Dietz et al v. Arkansas, 709 F. Supp. 902, 905 (ED Ark. 1989) and The

Oxford Companion to the Supreme Court of the United States, q.v. “Judicial Review.”

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“The interpretation of the law is the proper and peculiar province of the courts.”

Hamilton claimed that only the judiciary could be the ultimate guardian of the

constitution. Presaging Chief Justice John Marshall’s opinion fifteen years later in

Marbury v. Madison, 1 U.S. (Cranch) 137 (1803), Hamilton wrote, “No legislative act . . .

contrary to the Constitution, can be valid.” Thus, since it is the duty of the judges to

interpret the law, if there is an irreconcilable difference between a statute and the

Constitution, the judiciary, not the legislature should uphold the latter. “Where the will

of the legislature, declared in its statutes, stands in opposition to that of the people,

declared in the Constitution, the judges ought to be governed by the later rather than the

former.”

Hamilton in Number 78 makes a remark that places a stamp of approval on the

inherent power of judges to make interpretative rules. Referring to the rule that when two

statutes conflict, the statute most recently enacted prevails, Hamilton writes, “this is a

mere rule of construction, not derived from any positive law, but from the nature and

reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but

adopted by themselves, as consonant to truth and propriety, for the direction of their

conduct as interpreters of the law.”

Elsewhere: In Number 83, Hamilton addresses what can be called the “negative

pregnant rule.” He was responding to the Anti-federalists’ accusation that the provision

requiring trial by jury in criminal cases amounted to the abolition of the right to trial by

jury in civil cases.225

The modern version of the interpretative maxim, as Hamilton called

it, is: expression uinius: expression of one thing suggest the exclusion of others.

225 Art. III, § 2. “The trial of all crimes, except in cases of impeachment, shall be by jury.”

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Hamilton rejected the maxim, characterizing its use in this situation as a “disingenuous”

perversion of the maxim’s true meaning. He wrote, “the rules of legal interpretation are

rules of common sense, adopted by the courts in the construction of the laws.” Having

determined that “the use attempted to be made of the maxims [in this case], is contrary to

reason and common sense,” Hamilton concluded that the maxim is “therefore not

admissible.”

A contemporary example of Hamilton’s attitude toward rules of interpretation is

Burns v. United States where Justice Thurgood Marshall, writing for the court, wrote,

“As one court has aptly put it, ‘not every silence is pregnant.’ State of Illinois Dept. of

Public Aid v. Schweiker, 707 F.2d 273, 277 (CA7 1983).”226

At issue in this case was a

trial judge’s decision to depart upward from the sentencing guidelines without notice to

the defendant. Rule 32 of Criminal Procedure provides a comprehensive procedure for

post-conviction events, including sentencing. The sentencing rules require notice to the

defendant in many instances. For example, the probation officer must give the defendant

notice of the pre-sentencing report. However, there is no specific requirement that the

sentencing judge give notice of a sua sponte (of its own accord) decision to deviate

upward from the sentencing guidelines.

The Burns court felt that since Congress had explicitly given a defendant the right

to comment appropriately on the sentencing, to relieve the trial judge of notice of a sua

sponte decision to deviate upward from the guidelines would result in an absurdity.

Thus, Marshall relied on another interpretative maxim, namely, “when ‘confronted . . .

with a statute which, if interpreted literally, produces an absurd, and perhaps

226 Justices Blackmun, Stevens, Scalia and Kennedy joined in Marshall’s opinion.

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unconstitutional result[,] our task is to give some alternative meaning [to the statute] . . .

that avoids this consequence’” (citation omitted) (p. 136) Marshall also relied on

legislative “purpose.” Holding otherwise, Marshall insisted, violated the

statutory“purpose of promoting focused, adversarial resolution of the legal and factual

issues relevant to fixing Guidelines sentences” (p. 137) Marshall also believed in an

expansive method of statutory analysis, stating, “Where the intent is plain, nothing is left

to construction. Where the mind labours [sic] to discover the design of the legislature, it

seizes every thing from which aid can be derived; and in such case the title claims a

degree of notice, and will have its due share of consideration.”227

In a dissenting opinion in the Burns case, the Anti-federalist viewpoint of the

“negative pregnant” rule was embraced. Justice Souter, joined by three others, opined

that the “absence from this carefully calibrated [statutory] scheme of any provision for

notice of the sort required by the Court makes it clear that, in the words the Court quotes,

the congressional silence was pregnant, and that Congress intended to require no such

notice.”228

(p. 140) Justice Souter went on to write, “The problem with the Court's

notice requirement is that in no way does it result from a "construction" of anything in

Rule 32. In light of the emphatic congressional silence about prior notice of sua sponte

departures, what the Court does to Rule 32 comes closer to reconstruction than

construction.” (p. 146)

The United States Supreme Court invoked the maxim expressio unius est exclusio

alterius in the famous snail darter case that involved the completion of a Tennessee

Valley Authority dam in eastern Tennessee after an ichthyologist had discovered a three-

227 United States v. Fisher, 6 U.S. 358, 386 (U.S. 1805). 228Chief Justice Rehnquist, Justice White and O’Connor joined Justice Souter’s dissenting opinion.

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inch, tannish-colored perch called the Snail Darter when construction had exceeded 80%

and costs had exceeded $78 million. The issues were, one, would TVA violate the

Endangered Species Act of 1973 (ESA) that provided “Federal departments and agencies

shall, . . . with the assistance of the Secretary, utilize their authorities in furtherance of the

purposes of [the] Act by carrying out programs for the conservation of endangered

species . . . and by taking such action necessary to insure that actions authorized, funded,

or carried out by them do not jeopardize the continued existence of such endangered

species and threatened species or result in the destruction or modification of habitat of

such species which is determined by the Secretary . . . to be critical.” The second issues

involved the remedy if the answer to the first issue was “yes.”

The ESA act had a provision containing hardship exemptions, but none that

applied to the T.V.A. project. As the Chief Justice wrote, “In passing the Endangered

Species Act of 1973, Congress was also aware of certain instances in which exceptions to

the statute's broad sweep would be necessary. Thus, § 10, 16 U. S. C. § 1539 (1976 ed.),

in the case.creates a number of limited "hardship exemptions,” none of which would even

remotely apply to the Tellico Project. In fact, there are no exemptions in the Endangered

Species Act for federal agencies, meaning that under the maxim expressio unius est

exclusio alterius, we must presume that these were the only "hardship cases" Congress

intended to exempt.”229

While Hamilton was espousing judicial supremacy regarding constitutional

interpretation in Number 78, Madison appeared to differ in Number 49, where he wrote,

229 Tennessee Valley Authority v. Hill, 3=437 U.S. 153, 188 (1978) Justices BRENNAN, STEWART,

WHITE, MARSHALL, and STEVENS joined in the Chief Justices’ opinion.

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As the people are the only legitimate fountain of power, and it is from them that

the constitutional charter, under which the several branches of government hold

their power, is derived, it seems strictly consonant to the republican theory, to

recur to the same original authority, not only whenever it may be necessary to

enlarge, diminish, or new-model the powers of the government, but also

whenever any one of the [branches] may commit encroachments on the chartered

authorities of the others. The several [branches] being perfectly coördinate by

the terms of their common commission, none of them, it is evident, can pretend

to an exclusive or superior right of settling the boundaries between their

respective powers.”230

According to Madison, “an appeal to the people themselves, who as the grantors of the

commission, can alone declare its true meaning, and enforce its observance.” It is more

than interesting to consider Chief Justice Burger’s opinion in the Snail Darter case in

light of Madison’s statement. The Chief Justice was faced with a situation that

presumably precluded completion of the Tellico Dam and Reservoir project on the Little

Tennessee. Congress authorized the project in 1966, the T.V.A. began construction the

following year and Congress enacted the Endangered Species Act in December 1973. By

the time the lawsuit to enjoin construction was filed in 1976, the project was 80%

completed. Indeed, after the lawsuit was filed, Congress continued to fund the project.

In fact, in 1977, the Appropriations Committees of both houses of Congress expressly

stated that the ESA did not prevent the continuation of the project. Nonetheless, the

230 It is worth noting that Madison in a 1821 letter stated that his Notes on the Federal Convention could “have no authoritative character. The legitimate meaning of the Instrument must be derived from the text

itself; or if a key is to be sought elsewhere, it must be . . . the sense attached to it by the people in their

respective State Conventions where it received fall the authority it possesses.” This quote is in Farr,

Lieber, p. 1032.

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Supreme Court, in the best tradition of textualism, determined that the statute prevented

the completion of the project.

Madison’s injunction to let the people decide brings on a very practical problem

illustrated by the Snail Darter case. How can the “people” come to referee a dispute

between the branches of government. This, first of all, brings to mind something that

Thomas Jefferson wrote to James Madison from Paris on September 6 in the year that the

Constitution was being adopted. Jefferson wrote, “the earth belongs in usufruct to the

living: that the dead have neither powers nor rights over it. The portion occupied by any

individual ceases to be his when himself ceases to be, and reverts to the society.”231

To

be sure, the period from 1973, when the ESA was enacted to Supreme Court’s decision in

1978 was not a Jeffersonian generation, it still begs the question: who is the people’s

representative. Must the people actually assemble in constitutional conventions to decide

individual questions like the one presented in the Snail Darter case, or is one branch, á la

Marbury v. Madison, to be the ultimate referee somewhere short of going to the people?

As can be seen, the writings of the so-called Founding Fathers do address some of

the strategies of interpretation, such as Madison’s appeal to the strategy of republicanism,

but, in the main, there is not much one can find in the way of interpretative tactics.

231 To James Madison, Paris, September 6, 1789. To be sure, Jefferson was addressing the issue of whether

or not one generation should burden the next with a financial debt, the principle remains: to what extent

should any generation dictate the terms of existence for the next, whether financially or politically ─

meaning in terms of policy.

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Joseph Story

Justice Joseph Story (1779-1845), lawyer, judge and scholar was one of the

longest-serving justices on the Supreme Court (1811-1845). He also taught at Harvard

Law School for sixteen years, with both tenures ending with his death. During this dual

tenure, Story was a prolific writer, authoring, among other things, the very influential

three-volume Commentaries on the Constitution of the United States.232

Cardozo

considered Story alongside Lord Mansfield and Chancellor Kent as one of our greatest

judges.233

That Story’s writings were influential is undisputed.

We examine that part of the Commentaries that relate specifically to interpretation

of the constitutional text. Like Scalia, whose 1997 lamentations about the “current

neglected state of the science of construing legal texts,” implied that a study of the

interpretative process would create agreement among the decision-makers, Justice Story

explicitly thought the same thing a century and one-half earlier. He stated, “If these rules

[of interpretation] are correctly laid down, it will save us from many embarrassments in

examining and defining its powers.” Thus, complaining that “the rules of interpretation

[that] have often been shifted to suit the emergency; and the passions and prejudices of

the day, or the favour and odium of a particular measure, have not unfrequently furnished

a mode of argument, which would, on the one hand, leave the constitution crippled and

inanimate, or, on other hand, give it an extent and elasticity, subversive of all rational

boundaries,” Story offered what he claimed would be “the true rules of interpretation.”234

232

Boston: Hilliard, Gray and Company, 1833. 233 Cardozo, Judicial Process, 158. On the contrary, Llewellyn considered Story’s work as “shallow as it is broad.” Common Law, 414, n.18. 234234 Story, Commentaries on the Constitution of the United States, Vol. I, Book III, Chpt. V, §§ 398-399.

Unless stated otherwise all citations to Story’s work will come from this volume, book and chapter with a

reference only to section number.

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When President Madison appointed the young thirty-two-year-old attorney to the

Supreme Court, the Republicans [later Democrats] assumed that he would be a

counterforce to the Federalist John Marshall and his expansive view of nationalism. It

did not happen. Instead, Story not only sided with Marshall, he became in his own right

an enthusiastic promoter of nationalism, and, actually dedicated his treatise to the Chief

Justice under whom he served for quarter of a century. As we will see, it was Story’s

view of the federalist structure that informed his “true rules of interpretation.”235

Story proposed eighteen rules of interpretation, numbering from one to

nineteen—number three is missing from his enumeration. For convenience’s sake the list

will be printed, followed by a discussion of some of the more significant.

1) The first and fundamental rule in the interpretation of all instruments is, to construe them

according to the sense of the terms, and the intention of the parties. 2) In construing the constitution of the United States, we are, in the first instance, to consider,

what are its nature and objects, its scope and design, as apparent from the structure of the

instrument, viewed as a whole, and also viewed in its component parts. 4) As a frame or fundamental law of government, (2.) The constitution of the United States is to

receive a reasonable interpretation of its language, and its powers, keeping in view the objects

and purposes, for which those powers were conferred.

5) Where the power is granted in general terms, the power is to be construed, as co-extensive with the terms, unless some clear restriction upon it is deducible from the context.

6) A power, given in general terms, is not to be restricted to particular cases, merely because it

may be susceptible of abuse, and, if abused, may lead to mischievous consequences.

235235 Indeed, the section on interpretation contains eighty-six footnoted citations of authority, no less than

forty-six are Marshall’s opinions and/or The Federalist Papers—not to mention several of Justice Story’s

own judicial opinions. It is interesting that many jurists insist that they simple adhere to the objective law.

Take, for example, Justice Clarence Thomas (1948- ) who writes about the time of his confirmation hearing

that “As for the matter of my judicial philosophy, I didn’t have one—and didn’t want one. A philosophy

that is imposed from without instead of arising organically from day-to-day engagement with the law isn’t

worth having. Such a philosophy runs the risk of becoming an ideology, and I’d spent much of my adult

life shying away from abstract ideological theories that served only to obscure the reality of life as it’s

lived.” Nonetheless, by almost any account Justice Thomas is one of the most ideologically-driven justices

to sit on the high court. Jeffrey Toobin, “Unforgiven: Why is Clarence Thomas so angry?” The New

Yorker, November 12, 2007, 86, 90. According to the online multimedia project,Oyez, “Since becoming a

justice, Thomas has aligned closely with the far right of the Court. He votes most frequently on the same side as the conservative camp of Rehnquist and Scalia. When Thomas began his tenure on the Court, many

observers perceived him as a junior version of Scalia. Since then, Thomas has emerged from Scalia's

shadow offering hints at his own conservative thinking.” http://www.oyez.org/justices/clarence_thomas/

accessed 11/12/2007 9:46 AM.

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7) On the other hand, a rule of equal importance is, not to enlarge the construction of a given

power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous.

8) No construction of a given power is to be allowed, which plainly defeats, or impairs its

avowed objects.

9) Where a power is remedial in its nature, there is much reason to contend, that it ought to be construed liberally.

10) In the interpretation of a power, all the ordinary and appropriate means to execute it are to be

deemed a part of the power itself. 11) In the interpretation of the constitution there is no solid objection to implied powers.

12) [The] exclusive delegation, or rather this alienation of state sovereignty, would only exist in

three cases: a) where the constitution in express terms granted an exclusive authority to the Union;

b) where it granted, in one instance, an authority to the Union, and in another, prohibited the

states from exercising the like authority; and

c) where it granted an authority to the Union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant.

13) [Regarding the maxims], in an instrument a specification of particulars is an exclusion of

generals; or the expression of one thing is the exclusion of another. . . [I]n order to ascertain, how far an affirmative or negative provision excludes, or implies others, we must look to the

nature of the provision, the subject matter, the objects, and the scope of the instrument.

14) [T]he natural import of a single clause is not to be narrowed, so as to exclude implied powers resulting from its character, simply because there is another clause, which enumerates certain

powers, which might otherwise be deemed implied powers within its scope.

15) [E]very word employed in the constitution is to be expounded in its plain, obvious, and

common sense, unless the context furnishes some ground to control, qualify, or enlarge it. 16) We must resort then to the context, and shape the particular meaning, so as to make [a word]

fit that of the connecting words, and agree with the subject matter.

17) [W]here technical words are used, the technical meaning is to be applied to them, unless it is repelled by the context.

18) [I]t is by no means a correct rule of interpretation to construe the same word in the same

sense, wherever it occurs in the same instrument.

19) [T]he most important rule, in cases of this nature, is, that a constitution of government does not, and cannot, from its nature, depend in any great degree upon mere verbal criticism, or

upon the import of single words. . . . the truest exposition [is that] which best harmonizes

with its design, its objects, and its general structure.

As can be readily seen from a cursory perusal of Story’s interpretative rules, by

permitting the text to be construed rather broadly they tend to accommodate a nationalist

or Federalist position on the powers of the national government. In one particular case,

Justice Story goes to some length to counter the continued insistence of the Anti-

Federalists that any provision in the national constitution that reduced an antecedent

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power of the states should be strictly construed.236

He cites St. George Tucker’s 1803

commentaries on Blackstone: “Thus, in the Commentaries of Mr. Tucker upon

Blackstone, we find it laid down, as if it were an incontrovertible doctrine in regard to the

constitution of the United States, that ‘as federal, it is to be construed strictly, in all cases,

where the antecedent rights of a state may be drawn in question.”237

Story credits the renowned Swiss jurist and diplomat Emmerich Vattel (1714-

1767) noted for his 1758 work that was translated as Law of Nations in 1760. Vattel

promoted the notion that since international treaties encroached upon the national

sovereignty of the contracting parties, its terms should be strictly construed. Vattel

wrote: “That whatever tends to change the present state of things, is also to be ranked in

the class of odious things.” Story, refusing to consider the Constitution “odious,” made a

distinction between the situation where people surrendered rights to a monarch for the

benefit of the latter and when they surrendered rights to a “government, framed by the

people for their own benefit and protection, for the preservation of their rights, and

property, and liberty.”238

Moreover, according to Story, “state governments have no right

to assume, that the [governmental] power is more safe or more useful with them, than

with the general government; that they have a higher capacity and a more honest desire to

preserve the rights and liberties of the people, than the general government; that there is

no danger in trusting them; but that all the peril and all the oppression impend on the

236 The Anti-Federalist position is similar to the position of common law judges toward statutes that were in

derogation of the common law, and were thus to be strictly construed. Just as the judges were possessive of

their law-making function at common law, so were the Anti-Federalists jealous of their previous state-

centered powers. 237 Story, Commentaries, § 410. Tucker (1752-1827), was a lawyer, judge and professor at William and

Mary. His compilation of lecture notes appeared in an 1803 5-volume set familiarly known as Tucker's

Blackstone. 238 Story, Commentaries, § 413.

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other side.”239

All the same, that vestiges of the state’s rights position and the

apprehension of national power is still around today, there can be little doubt.

As authority for the proposition that the people, not the state governments created

the national government, Story pointed to his opinion in Martin v. Hunter’ Lessee,240

which has been characterized as Story’s most important opinion of his thirty-four year

judicial career, and one that is a landmark in the history of federal judicial supremacy.

Under Virginia law the land of a British loyalist, Fairfax, had been confiscated in 1791.

Afterwards, the devisee of Fairfax, claiming the state action violated the Treaty of Paris

and the Jay Treaty, brought suit in Virginia court to obtain possession of the land. After

the state court held for the tenant in possession, Fairfax’s heir (later Martin) appealed to

the U.S. Supreme Court under the authority of Section 25 of the 1789 Judiciary Act that

empowered the Supreme Court to review state action involving treaties or national law.

The Supreme Court reversed, but the Virginia courts chose to ignore it. Martin v.

Hunter’s Lessee followed.

Story’s opinion, which made it clear that the national government was beholden

to the people, not the state governments, was a milestone in national-state relations. His

opinion became a staple theory of federalism.

The constitution of the United States was ordained and established, not by the

states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by “the people of the United States.” There can be no

doubt that it was competent to the people to invest the general government with

all the powers which they might deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount

and supreme authority. As little doubt can there be, that the people had a right to

prohibit to the states the exercise of any powers which were, in their judgment,

239 Story, Commentaries, § 415. 240 14 U.S. 304 (1816). The characterization comes from Hall, Kermit, “Martin v. Hunter’ Lessee,” in The

Oxford Companion to The Supreme Court of the United States, ed. Kermit Hall, 529 (New York: Oxford

University Press, 1992)

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incompatible with the objects of the general compact; to make the powers of the

state governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to

delegate to either. The constitution was not, therefore, necessarily carved out of

existing state sovereignties, nor a surrender of powers already existing in state

institutions, for the powers of the states depend upon their own constitutions; and the people of every state had the right to modify and restrain them, according to

their own views of policy or principle. On the other hand, it is perfectly clear

that the sovereign powers vested in the state governments, by their respective constitutions, remained unaltered and unimpaired, except so far as they were

granted to the government of the United States.241

Story’s second and fourth interpretative rules are apparent. He says the intentions

of the framers and adopters are of little concern because such intention is intractable.

What matters is the constitutional framework’s “nature and objects, its scope and design,

as apparent from the structure of the instrument, viewed as a whole, and also viewed in

its component parts.”242

Quoting himself, Story opined that since the Constitution “was

not intended to provide merely for the exigencies of a few years; but was to endure

through a long lapse of ages, . . . its powers are expressed in general terms, leaving the

legislature, from time to time, to adopt its own means to effectuate legitimate objects, and

to mould and model the exercise of its powers, as its own wisdom and the public interests

should require.”243

Story’s interpretative approach is much like Justice Breyer’s—decide the goals

and strategies and the tactical interpretative rules will fall out of the tree. Just as Story

determined that the purpose and structure of the national constitution was served by

interpretative rules that permitted national judges wide latitude to implement the

constitution’s “nature and objects, its scope and design,”244

Justice Breyer, who views

241 14 U.S. 304, 325-326. 242 Story, Commentaries, § 405. 243 114 U.S. 304, 326-327. 244 Story, Commentaries, § 405.

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the document’s democratic foundation as an instrument of interpretative empowerment,

has stated, “My thesis . . . finds in the Constitution’s democratic objective . . . a source of

judicial authority and an interpretative aid to more effective protection of ancient and

modern liberty alike.”245

While Justice Story spends his time working out some tactical

interpretative rules that will help him achieve his conception of the constitutional

framework, Justice Breyer spends most of his time giving illustrations of using his

constitutional conceptions in specific cases (which we will examine later). Nonetheless,

Breyer does put forth some specific, though abstract interpretative rules. They are:

1) The text’s language should be read along with related language in other parts of the

document; 2) The history of the text, including history that shows what the language likely meant to those

who wrote it should be consulted;

3) The tradition that indicates how the relevant language was, and is, used in the law should be consulted;

4) Precedents that have interpreted the text, holding or suggesting what the text means and how

it has been applied, should be consulted;

5) There must be a consideration of the text’s purposes; 6) There must be a consideration of the values that the text embodies; and

7) The consequences of an interpretation must be taken into account.

Breyer, emphasizing purpose and consequences, elaborates on his view of the

structure and purpose of the constitutional framework: “government is democratic; it

avoids concentration of too much power in too few hands; it protects liberty; it insists that

the law respect each individual equally; and it acts only upon the basis of law itself.”246

It

is hard to imagine many people disagreeing with these platitudes, even if they might

vehemently disagree with some of Breyer’s interpretative conclusions.

245 Bryer, Stephen, Active Liberty: Interpreting our Democratic Constitution. (New York: Alfred A. Knopf,

2005), 6. 246 Breyer, Active Liberty, 8-9.

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The Jacksonian Era

Francis Lieber

Alexander Hamilton and John Marshall notwithstanding, by the time the

Constitution was fifty years old, a national consensus did not exist. In spite of the pursuit

of Hamiltonian nationalism by Marshall’s expansive reading of the constitutional text,

strict construction was aggressively pursued by the proponents of state’s rights.247

With

the passing of the generation of constitutional Federalists like Madison in 1835 and

Marshall in 1836, and the ascension of Andrew Jackson as president and Roger Brooke

Taney as Chief Justice, the nationalist period was replaced with dual federalism where

the states were accorded the right to exercise more sovereignty. This duality informed

the court’s interpretative decisions from Taney’s opinion in Charles River Bridge Co. v

Warren Bridge Co (1837), to Justice Day’s opinion in Hammer v. Dagenheart (1918).

From the beginning of the common law to this very day, no general, overarching

theory of interpretation has existed. Most of the interpretative aids that go by a variety of

names, rules of interpretation or construction, doctrines, canons of constructions or

interpretative maxims are gleaned from the judicial opinions one at a time in a very

unorganized, crazy-quilt manner. In fact, if you go to the section on “Rules of

Interpretation,” under the title “Statutes” in the current edition of Corpus Juris Secundum,

you will find that the editors begin straightaway with the rule that “the purpose of all

rules as to the construction of statutes is to discover the true intention of the law,” without

one mention of a theoretical basis for the rule. From there, the encyclopedia states rule

after rule for fifty-six pages citing specific cases that mention the rule.

247 Farr, James. “Francis Lieber and the Interpretation of American Political Science.” Journal of Politics

Vol. 52 No. 4 (November 1990) 1031.

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Notwithstanding the lack of general theory, much effort has been made to reach

for a general theory — or at the very least, an organized approach to interpretation.248

One of the earliest efforts in the United States was by Francis Lieber, a transplanted

German who was a close observer of the political and legal community very interested in

interpretation. Lieber, a teacher of politics and history at South Carolina College and

Columbia College in New York, associated with many notables in the legal community:

John C. Calhoun and Joseph Story among them. Lieber was a prolific writer who tackled

a wide variety of subjects, including, law, politics, ethics, war and history.249

Lieber’s work that concerns us is Legal and Political Hermeneutics: or Principles

of Interpretation and Construction in Law and Politics, with Remarks on Precedents and

Authorities.250

The book was first published in the journal American Jurist in 1837 and

1838, followed by a revised and enlarged edition published in 1839 by Little and

Brown.251

Lieber’s beginning point was the notion that human relationships have a

linguistic foundation. He believed that since “there is no direct communion between the

minds of men . . . we cannot obtain our object without resorting to the outward

manifestation of that which moves us inwardly, that is, to signs.”252

“Signs” included not

only words, but also “all marks, intentional or unintentional, by which one individual

248 James Farr, who likened Lieber’s principles to maxims “along Kantian-transcendental lines [that]

regulate the understanding and so make interpretation and construction possible.” To say that interpretative

principles make interpretation possible is tautological; like saying a hammer makes hammering possible. 249 It is worth noting that upon his arrival in the United States, instantly observed a connection between law

and politics, which he described as “peculiarly American.” It was a “political” protest against President

John Quincy Adams that was based on an interpretation of the Constitution. 250 Chancellor James Kent’s son, William, commenting upon the title of Francis Lieber’s book, exclaimed

“What in God’s name made you choose ‘Hermeneutics?’ Had you called your . . . book ‘principles of

interpretation . . . many an honest fellow, now frightened away, would have read and enjoyed the writing.” Quoted in Frank Freidel, Francis Lieber, Nineteenth-Century Liberal, 175. 251 Reference to Lieber’s Hermeneutics will be to the 1839 Little and Brown edition as reprinted by in 2002

by The Lawbook Exchange, Ltd. 252 Lieber, Hermeneutics, ch. I, § I.

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may understand the mind or the whole disposition of another.”253

Lieber considered the

“true meaning of any sign is that meaning which those who used them were desirous of

expressing.”254

Regarding the signs or texts of laws, “it is impossible to word laws in

such a manner as to absolutely exclude all doubt,, or allow us to dispense with

construction [which Lieber, essentially defines as having to go outside the document to

ascertain its meaning], even if they were worded with absolute (mathematical)

distinctness, for the time for which there were made; because things and relations change,

and because different interests conflict with each other.”255

Thus, according to Lieber, since all understanding comes by way of the

interpretative process, we must “ascertain the principles of true and safe

interpretation.”256

To do this, he divides the process into to two categories: interpretation

and construction. Interpretation is defined as “the art of finding out the true sense of any

form of words: that is, the sense which their author intended to convey, and of enabling

others to derive from them the same idea which the author intended to convey.”257

Construction is defined as the drawing of conclusions respecting subjects, that lie beyond

the direct expression of the text, from elements known from and given in the text ─

conclusions which are in the spirit, though not within the letter of the text.”258

Lieber furnished an example to clarify the difference between interpretation and

construction. Thomas Cumming was a bachelor who had family in England. A provision

253 Lieber, Hermeneutics, ch. I, § II. 254 Lieber, Hermeneutics, ch. I, § IV. Describing “true meaning” as the author’s intention for Lieber was

consistent with the philosophy of one of his teachers, Friedrich Daniel Ernst Schleiermacher (1768-1843)

who taught that a communication had to be understood as part of the author’s “life-history.” See Mueller-

Vollmer, The Hermeneutic Reader, p. 10. 255 Lieber, Hermeneutics, ch. VI, § VII. 256 Lieber, Hermeneutics, ch. II, § XI. 257 Lieber, Hermeneutics, ch. I, § VIII. 258 Lieber, Hermeneutics, ch. III, § II.

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in his will contained a bequeath to his nephew, also named Thomas Cumming, who ─

unbeknown to the testator ─ was dead at the time the will was drafted. In addition,

unknown to the testator, his nephew had a son named Thomas Cumming.

The argument was made by the alternative beneficiaries of the bequeath that the

bequeath could not have been left to the nephew for he was dead, and it could not have

been left to the grandnephew, for the testator did not know of his existence. Regarding

“interpretation,” this argument is valid because “according to the true meaning of the

testator’s words, that is, according to the meaning which he attached to them, he cannot

have meant Thomas Cumming the grandnephew.

Therefore, since there is no Thomas Cumming in existence, we must resort to

“construction,” i.e., we “shall we draw our conclusions and apply them to the subject,

which lies beyond the direct expression of the text, from elements known by and given in

the text.”

Lieber’s “construction” employs the doctrine of cy-pres (which is French meaning

“as close as possible,” and pronounced “see-pray.”). Thus, since the testator obviously

intended to make bequeath to his English family, and since the grandnephew would be

the closest available English recipient, he takes under the terms of the will.

It appears, then, that the distinction between “interpretation” and “construction” is

simply that the former, being the first step of ascertaining the meaning of a text, involves

a rather easy grasp of the author’s meaning solely from the text ─ what we might call the

“plain meaning of the text ─ and the latter involves having to go outside the text for

whatever reason to either determine the author’s meaning, or what the author might have

done if presented with the alternative applications current available.

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Having created this interpretative dichotomy, Lieber presents a list of principles

for each category. First, he presents different types of interpretation:

1. Close Interpretation, taking the words in their narrowest sense, generally

called “literal interpretation.” Lieber says that words cannot be taken literally.

He says that it is “hardly ever possible, since all human language is made up

of tropes, allusions, images, expressions relating to erroneous conceptions.”

To illustrate with an example, he uses the word “give.” “Give,” is derived

from the ancient word “gaff,” which meant “hand.” Therefore, to use “give”

in a will cannot be taken literally, because the author of the will is obviously

dead and can therefore not hand anything to a legatee. Another example is the

11th – 12th century Church canon law that prohibited ministers of the Roman

Catholic Church from “shedding blood.” Taken literally, it would prohibit

priests from practicing surgery at a time when only they were sufficiently

educated to perform surgery.259

2. Extensive Interpretation, also known as liberal interpretation, but Lieber

prefers the term “extensive”

3. Extravagant interpretation “is that mode of interpreting, which substitutes

such meaning as is evidently beyond the true meaning; it is, therefore, not

genuine interpretation.”

4. Free or unrestricted interpretation “proceeds simply on the general principles

of interpretation in good faith, not bound by any specific or superior

principle.”

5. Limited or restricted interpretation “takes place, if other rules or principles

than the strictly hermeneutic ones, limit us.”

6. Predestined interpretation exist “if the interpreter, either consciously of

unknown to himself, yet laboring under a strong bias of mind, makes the text

subservient to his preconceived views, or some object he desires to arrive at. .

. It corresponds to what might be called ratiocination, ex post facto

reasoning.”

Lieber next list the principles of interpretation:260

1) A sentence, or form of words, have but one true meaning.

2) There can be no sound interpretation without good faith and common sense.

3) Words are, therefore, to be taken as the utterer probably meant them to be taken. In

doubtful cases, therefore, we take the customary signification, rather than the

grammatical or classical; the technical rather than the etymological — verba artis ex

259 Compare this with Lieber’s principle of construction number 12: “nothing contributes more to the

substantial protection of individual liberty, than a habitually close interpretation and construction.” (p. 136) 260 Lieber, Hermeneutics, ch. IV, § II-XVI.

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arte261

— tropes as tropes. In general, the words which agrees most with the

character of both the text and the utterer.

4) The particular and inferior cannot defeat the general and superior.

5) The exception is founded upon the superior.

6) That which is probable, fair, and customary, is preferable to the improbable, unfair

and unusual.

7) We follow special rules given by proper authority.

8) We endeavor to derive assistance from that which is more near, before proceeding to

that which is less so.

9) Interpretation is not the object, but a means; hence superior considerations may exist.

Lieber says that best meaning is the meaning that comes from within the four

corners of the text by interpretation, not outside the text by construction. This is

somewhat contradictory of his definition of interpretation: “Interpretation is the art of

finding out the true sense of any form of words: that is, the sense which their author

intended to convey, and of enabling others to derive from them the same idea which the

author intended to convey.” (p. 20) If the meaning was derived from the text only, how

can it be known that the author did not in fact intend something different. If there can be

two meanings, how does it lessen the validity of the meaning derived if derived by going

outside the text to, say, for example, determine the meaning of a technical term?

In fact, Lieber goes on to assert, “The appeal to the motives of the utterers is, in

most cases, doubtful, in many dangerous; because it lies in the nature of things that it

must be difficult, or impossible, to arrive at them otherwise than from the words

themselves, except when a general declaration has taken place.”

Then Lieber backs up, saying, “there are considerations, which ought to induce us

to abandon interpretation, or with other words to sacrifice the direct meaning of a text to

considerations still weightier; especially not to slaughter justice.” (115)

261 Words of art should be construed by the art.

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Lieber then gives an illustration involving the Bengalese sepoy [soldier], a

drummer/musician who, having become a Christian, thus making English law available

to him, was not considered to be exempt from flogging because the Governor General of

India had exempted sepoys, and, apparently, John Dooming was no longer a sepoy

subject to the law as decreed by the Governor General, but, rather by the law of England,

which the Governor General was not authorized to change regarding flogging. The

Governor General’s decree provided, it was directed that “the practice of punishing

soldiers of the native army by the cat-o;-nine tails or rattan, be discontinued.” The Judge

Advocate’s interpretation of the text opined, the Governor General’s decree “does not

extend to Christian drummers or musicians . . . it only affects native soldiers not

professing the Christian faith.” Thus, Dooming received 300 lashes with the cat-o’-nine

tails.

Lieber stated the reasoning for construction, or departing from the text as, the

interpretation was wrong, “because to be subject to the English laws proper, was meant to

be a benefit, and not to lead to the monstrosity that the profession of Christian religion

should entitle the Sepoy to three hundred lashes, and defeat the other privilege which his

darker color conferred upon him.” (117)

Another example was the English defendant, Sir William Parkyns, accused of

treason that was denied counsel even though a statute had been enacted that provided the

right to counsel beginning on the day after Parkyns’ was tried. Even though the statute’s

preamble stated that it sought to do what was just and reasonable, the judge stood by the

text asserting that the text could not be in any way ignored or altered.

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10) “That which is probable, is preferable, to the less probable; the fair, to the unfair; the

customary, to the usual; the easy, to the difficult; the intelligible, to the

unintelligible.”

11) “We have to follow the special rules of interpretation, which have been given us by

proper authority.”

12) “We endeavor to find assistance in that which is near, before we proceed to that

which is less so.”

Lieber’s pecking order as to what is nearby is:

1. the word’s connection in the sentence;

2. assistance from the period;

3. the entire document;

4. other writings by the same author;

5. contemporaneous writers or declarations; and

6. Similar laws to that which forms the text.

Following his treatment of the principles of interpretation, Lieber lays out his

principles of construction beginning with the statement that

1. All of the principles of interpretation are also applicable to construction.262

2. The main guide of construction is analogy, or rather, reasoning by parallelism.

3. The aim and object of an instrument, law, etc., are essential, if distinctly known,

in construing them.

4. So also may be the causes of a law.

5. No text imposing obligations is understood to demand impossible things.

6. Privileges, or favors, are to be construed to be least injurious to the non-privileged

or unfavored. Very Rawlsian!

7. The more the text partakes of the nature of a compact, or solemn agreement, the

closer ought to be its construction.

8. A text imposing a performance, expresses the minimum, if the performance is a

sacrifice to the performer, the maximum, if it involves a sacrifice or sufferance on

the side of the other party.

9. The construction ought to harmonize with the substance and general spirit of the

text.

10. The effects, which would result from one or the other construction, may guide us

in deciding which construction we ought to adopt.

11. The older a law, or any text containing regulations of our actions, though given

long ago, the more extensive the construction must be in certain cases. See

Barak’s spectrum for combining age with type of document.

262 Lieber, Hermeneutics, ch. V § II-XVI.

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12. Yet nothing contributes more to the substantial protection of individual liberty,

than a habitually close interpretation and construction.263

13. It is important to ascertain, whether words were used in a definite, absolute, and

circumscribed meaning, or in a generic, relative, or expansive character.

Lieber’s comment on this one is instructive relative to the Eight Amendment and

a “living constitution.” “If the term ‘genteel education’ is used with reference to the

character of a school to be supported by certain foundations, it will be found

necessary to take the expression in that meaning, which every successive period

attaches to it. If the direction, however, is to instruct in certain branches which have

been enumerated, and it were than added: ‘all branches called genteel education,’

there might be reason to limit the meaning to that of the time.”264

According to Lieber, there must be three considerations:

1. Did the utterer speak in definite, absolute or circumscribed terms? Or did he

speak in relative, generic or expansive terms?

2. if the latter case, did the utterer consider the terms fixed and unalterable or variable and expansive?

3. “is the subject to which the text relates of that elementary, vital and

absorbing importance to society, that every other interest, or consideration, must yield; so that in construing the difficult parts of the text, we are obliged

to regulate our decision rather by the meaning which the words would now

have, considering things and circumstances as they now exist, than by

knowing meaning which the utterer attached to them, considering the then relations. Here the difference between interpretation and construction is

evident.” (140, emphasis added.)

263 Check page 66 where Lieber seems to disdain “close” interpretation. Also, note that here on page 136

he acknowledges that “verdicts are not wanting which evidently defeated the object of the law, in

consequence of adhering to its mere letter; yet I do not hesitate to avow my firm belief that England owes

her civil liberty . . . to no circumstances in a higher degree than to the habitually close construction of her

laws.” 264 This sentiment was voiced by Justice Holmes in 1920. “[W]hen we are dealing with words that also are

a constituent act, like the Constitution of the United States, we must realize that they have called into life a

being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a

century and has cost their successors much sweat and blood to prove that they created a nation. The case

before us must be considered in the light of our whole experience and not merely in that of what was said a

hundred years ago.” Missouri v. Holland, 252 U.S. 416, 433 (U.S. 1920).

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14. Let the weak have the benefit of a doubt, without defeating the general object of

the law. Let mercy prevail if there be a real doubt.

15. A consideration of the entire text or discourse is necessary, in order to construct

fairly and faithfully.

16. Above all, be faithful in all construction. Construction is the building up with

given elements, not the forcing of extraneous matters into a text.

Although, as mentioned, Lieber did not have an overarching theory for his rules

of interpretation and construction, he, nevertheless, repeatedly emphasized his “common

sense and good faith,” two attributes that every interpreter will, no doubt, profess. He

stated, “However minutely we may define, somewhere we must trust at last to common

sense and good faith.”265

Later on, he emphasizes that “good faith and common sense

[that] are indispensable in the application of the principles furnished by hermeneutics.”266

Lieber’s influence on textual interpretation is not clear. While his Hermeneutics

has been cited by courts over the years, the references are not that many. Be that as it

may, given his affiliation with notables of the day and his position of observation from

the university, he is most certainly representative of the times in which he wrote.267

The

fact that Lieber’s Hermeneutics was reprinted in 1880 and 2002 is evidence of his

enduring importance to the history of legal interpretation in the United States.

Two aspects of Lieber’s Hermeneutics is very relevant to contemporary notions of

legal interpretation: the changing nature of society vis-à-vis outdated statutes and the

danger of adhering to a literal interpretation of a legal text. Close Interpretation, taking

the words in their narrowest sense, generally called “literal interpretation.” Lieber says

that words cannot be taken literally. He says that it is “hardly ever possible, since all

265 Lieber, Hermeneutics, ch. II, § IV. 266 Lieber, Hermeneutics, ch. III, § VII. 267 Karl Llewellyn found Lieber to be theoretical rather than “a reflection at all of American practice.”

Common Law, 73, n. 56.

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human language is made up of tropes, allusions, images, expressions relating to

erroneous conceptions.” To illustrate with an example, he uses the word “give.” “Give,”

is derived from the ancient word “gaff,” which meant “hand.” Therefore, to use “give” in

a will cannot be taken literally, because the author of the will is obviously dead and can

therefore not hand anything to a legatee. Another example is the 11th – 12th century

Church canon law that prohibited ministers of the Roman Catholic Church from

“shedding blood.” Taken literally, it would prohibit priests from practicing surgery at a

time when only they were sufficiently educated to perform surgery.268

Regarding the thirteenth rule of construction, Lieber stated, It is important to

ascertain, whether words were used in a definite, absolute, and circumscribed meaning, or

in a generic, relative, or expansive character.

Lieber’s comment on this one is instructive relative to the Eight Amendment and

a “living constitution.” “If the term ‘genteel education’ is used with reference to the

character of a school to be supported by certain foundations, it will be found necessary to

take the expression in that meaning, which every successive period attaches to it. If the

direction, however, is to instruct in certain branches which have been enumerated, and it

were than added: ‘all branches called genteel education,’ there might be reason to limit

the meaning to that of the time.”

James Kent

A significant writer in the first part of the nineteenth century was Chancellor

James Kent (1763-1847), lawyer, judge, legislator, professor and author, whom Justice

268 Yet, compare this with Lieber’s principle of construction number 12: “nothing contributes more to the

substantial protection of individual liberty, than a habitually close interpretation and construction.” (ch. V,

§ XII.

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Cardozo considered one of the “great masters,” had a foot in both the eighteenth and

nineteenth century. He was the first professor of law at Columbia College, appointed in

1793. It is interesting that as Kent’s lecture series at Columbia is considered as the

beginning of Columbia Law School, Lieber’s tenure at Columbia is considered the

beginning of a department of Political Science.269

Kent, like Lieber, put much stock in the principles by which the true meaning —

in Lieber’s words — of a text could be determined. The origin of these principles were

almost entirely judicially derived. In Kent’s words, “These rules, by which the sages of

the law, according to [Edmund] Plowden,270

have ever been guided in seeking for the

intention of the legislature, are maxims of sound interpretation, which have been

accumulated by the experience, and ratified by the approbation of ages.”271

Since the

interpretative rules are judicially derived, it is no stretch of the imagination to expect one

that provides that “the Legislature is presumed to know the statutory rules of

construction.”272

Whereas Lieber’s principles of interpretation and construction were somewhat

abstract, Kent’s rules for interpretation tended to be more concrete. Another significant

difference between the two works is that Story annotated his rules, citing cases while

269 Kent is principally known as “Chancellor Kent” because of his tenure as Chancellor (1814-1823)

following his tenure on New York’s appellate court from 1798 to 1814, the last ten years as Chief Justice. 270 Edmund Plowden (1517-1585) was a sixteenth-century English lawyer, physician, member of

Parliament and noted court reporter. 271

Kent quotes come from Part III, Lecture XX of the Commentaries on American Law, (New York: O.

Halstead, 1826), Fifteenth Edition edited by Jon Roland (1997-2002), that is based on Fourteenth Edition by John M. Gould (1896), which was based on the Twelfth Edition edited by Oliver Wendell Holmes, Jr.

http://www.constitution.org/jk/jk_000.htm, accessed 10/19/2007 4:00 P.M. 272 Kent, Comentaries, 462. See, for example, Young v. Michigan Dept. Highways, 429 N.W. 2d 642, 645

(Mich. 1988)

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Lieber was more apt to give historical examples that did not necessarily involve

litigation.

Although Kent claims that the intent of the lawgiver is paramount, he nevertheless

takes the position against using statements by the legislative members during debate as a

bill worked its way through the legislative process to determine legislative intent.

Quoting cases, Kent opined, “The courts, in determining the intent, cannot revert to the

views expressed by members of the legislature in debate, or receive testimony from them

as to what was intended, although they may consider statements made in debate as to

current history, or the special meaning of words employed.” 273

Kent cited an opinion

from the Supreme Court of Georgia that included these remarks:

While the opinion of a member of the legislature which passed an act, or that of

the comptroller-general, as to its meaning and purpose, might possibly often be valuable and instructive in construing the act and arriving at the legislative intent,

it cannot be seriously contended that courts can properly resort to sources of this

kind in ascertaining the legislative will as expressed in a statute. These gentlemen might differ as to what an act did mean, which would only increase,

rather than relieve, any difficulty a court might have in construing the law. But

aside from this, which is only thrown out as a suggestion in passing, this method

of arriving at the meaning of a public statute, cannot, after careful reflection, receive the sanction of any fair mind.

274

I want to dwell on this point for a moment because it so closely resembles the

position of Justice Antonin Scalia, who wrote, “My view that the objective indication of

the words, rather than the intent of the legislature, is what constitutes the law leads me, of

course, to the conclusion that legislative [debates and reports] should not be used as an

authoritative indication of a statute’s meaning.”275

273

Kent, Commentaries, 462. 274 Stewart v. Atlanta Beef Co., 93 Ga. 12, 18 (Ga. 1893). 275 Scalia, A Matter of Interpretation, 29-30. At times Justice Scalia sounds as if he expects to find or at

least would like to discover“that lawyer’s Paradise where all words have a fixed, precisely ascertained

meaning; where men express their purposes not only with accuracy, but with fulness [sic]; and where, if the

writer has been careful, a lawyer, having a document before him, may sit in his chair, inspect the text, and

(Continued on next page.)

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It is interesting, to say the least, that Justice Scalia supports his position on this

point by quoting Chief Justice Taney’s opinion in Aldridge v. Williams.276

Justice Scalia

might well have added that this interpretative position is also the same one that led Chief

Justice Taney to write the infamous opinion in Dred Scott v. Sandford, where the Chief

Justice wrote,

It is not the province of the courts to decide upon the justice or injustice, the

policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power to those who formed the sovereignty and framed

the Constitution. The duty of the court is, to interpret the instrument they have

framed, with the best lights we can obtain on the subject, and to administer it as

we find it, according to its true intent and meaning when it was adopted. 277

While Justice Scalia disdains the use of legislative debates in determining the

meaning of a statute, he does, as we will see, utilize the writings of the Constitution’s

founders, including some that were not involved in the debates. He does so, not to

determine their specific intentions, but, rather, as would Chancellor Kent, to determine

the meaning of the text. Scalia wrote,

I will consult the writings of some men who happened to be Framers — 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.

278

answer all questions without raising his eyes.” Thayer, James Bradley. A Preliminary Treatise on

Evidence. (Boston: Little, Brown, and Company, 1898), 428-429. 276 44 U.S. (3 How.) 9, 24 (1645). 277 60 (19 How.) U.S. 393, 405 (1857). 278 Scalia, A Matter of Interpretation, 38. Although John Jay collaborated with Alexander Hamilton and

James Madison on the essays contained The Federalist, he was not involved in the drafting of the

Constitution. Thomas Jefferson was in France during the Constitution’s formative period.

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According to Chancellor Kent, “The words of a statute, if of common use, are to

be taken in their natural, plain, obvious, and ordinary signification and import, and if

technical words are used, they are to be taken in a technical sense, unless it clearly

appears from the context, or other parts of the instrument, that the words were intended to

be applied differently from their ordinary or their legal acceptation”279

He does approve

of going outside the text when the text is unclear. “When the words are not explicit, the

intention is to be collected from the context, from the occasion and necessity of the law,

from the mischief felt, and the objects and the remedy in view; and the intention is to be

taken or presumed, according to what is consonant to reason and good discretion.”280

One interpretative rule that Kent and Scalia may differ somewhat is the one that

Kent states as follows: “Statutes are likewise to be construed in reference to the

principles of the common law; for it is not to be presumed that the legislature intended to

make any innovation upon the common law, further than the case absolutely required.”

Kent goes on to say this rule is equally applicable to the construction of acts of Congress

even though there is no common law of the United States.281

Justice Scalia’s criticism of

the text of the Eight Amendment is subject to the “evolving standards of decency” is that

to change the text to mean something it did not mean when written, is “preeminently a

common-law way of making law, and not a way of construing a democratically adopted

text.”282

(emphasis added) According to Justice Scalia, while the maxim cessante

ratione cessat lex ( iIf the purpose of the law removed, the law itself falls away may be

applicable to the common law, it should not be permitted to invade the province of the

279 Kent, Commentaries, 462. 280 Kent, Commentaries, 462. 281 Kent, Commentaries, 464; see also 1 Story, Com. on Con., (3d ed.,) § 158. 282 Scalia, A Matter of Interpretation, 40.

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democratically-constituted legislature. As early as Chief Justice Taney’s opinion in

Charles River Bridge v. Warren Bridge, wherein he stated “in the construction of all

legislative grants, the common law must be taken into consideration; for the legislature

must be presumed to have in view the general principles of construction which are

recognised (sic) by the common law.” 283

What was implicit in Charles River Bridge was

made explicit in Rice v. Minnesota & N.W.R. Co. by an opinion of Justice Clifford, in

which Chief Justice Taney concurred. Justice Clifford, citing Charles River Bridge,

wrote, the “rules for the construction of statutes in the Federal courts, both in civil and

criminal cases, were borrowed from the common law.”284

At another place, Kent appears to favor a contemporary reading of a text. He

states, “In the construction of statutes, the sense which the contemporary members of the

profession had put upon them is deemed of some importance, according to the maxim

that contemporanea expositio estfortissima in lege.”285

(contemporary construction is the

strongest in law)

Kent’s work is typical in not attempting to offer any critical theory supporting the

various interpretative rules. For example, without any theoretical preceding or afterword

discussion of supporting theory, Kent simply asserts that “Provisos in a statute are strictly

construed.”286

He does annotate the rule with cases; one being a Connecticut case that

also made without any theoretical discussion, fore or after, a simple assertion of the rule’s

existence by stating “a proviso in a statute is to be construed strictly and takes no case out

283 11 Pet. (36 U.S.) 420, 617 (1837) 284 66 U.S. 358, 375 (1861). 285 Kent, Commentaries, 464-465 286 Kent, Commentaries, 467.

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of the enacting clause which is not fairly within its terms.”287

The case cited is United

States v. Dickson, which contains the following assertion: “we are led to the general rule

of law which has always prevailed, and become consecrated almost as a maxim in the

interpretation of statutes, that where the enacting clause is general in its language and

objects, and a proviso is afterwards introduced, that proviso is construed strictly”288

Apparently, since the rule had become a sacred maxim, there was not even the need to

offer any authority whatsoever. The maxim regarding provisos, like most others, are,

paraphrasing Kent, accumulated by sages through their experience, and ratified by the

approbation of ages. Stated, differently: when a judge makes a positive pronouncement,

rationale aside, if it stays around long enough and is sufficiently repeated, it becomes an

official rule of law.289

Ever the judge, Chancellor Kent’s attitude toward statutes was that they were too

many and they brought on undesirable change. In fact, he considered that “a vast deal [of

statutory law] is made up of enactments intended to merely repeat what has been decided

by our or the English courts.” He saw the statutory scheme was in the main “an

arrangement more scientific, a style improved in elegance and simplicity.” In short, a

codification of judicially-derived common law. Kent’s advice on how we should cope

with “an age when there is literally a mania for changing every law in some way,” was to

hold to the advice of Solon, the Athenian lawgiver, whom Kent said believed

that it was better to retain old laws, even though in some respects objectionable,

than to be always eager to change them for new ones, though possibly superior.

Little or no confidence can be placed in the authority of laws which are incessantly altered, remodeled, (sic) and exchanged; and that those only which

have been sanctioned and established by long usage, and under which the citizens

had, as it were, been born. 290

287

Appeal of Clark, 58 Conn. 207, 209-210 (Conn. 1889). The Dixon case can be found at 288 40 U.S. 141, 163 (U.S. 1841) 289 It is an interesting observation that the other two branches of government are finally getting in on the act

with more statements of legislative purpose and definition of terms used in statutes, and the increasing use

of so-called “signing statements” of presidents. 290 Kent, Commentaries, 468.

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Yet Kent viewed Justinian’s foolish attempt to preclude changes in the law with his

injunction to all that no commentary [read interpretation] be made of the Corpus Juris

Civilis. Kent ended this section on statutes by quoting Lieber approvingly regarding the

absolute necessity of interpreting statutes and in a way that can possibly change law to

suit changed circumstance. After all, Kent maintains, that statutes can neither “provide

for all specific cases,” nor “be so construed as to close all further inquiry.”291

Kent was in favor of change and change by interpretation so long as it was done

by judges. He did not mind the legislature legislating, so long as they were only dressing

up the common law. From today’s perspective it is difficult to comprehend Kent’s fear

of “legislative mania” when the first comprehensive code in the United States was not

adopted until 1848, and, named after the noted legal reformer Dudley Field (1805-1895),

it dealt with procedure.

It is a huge wonder what Kent would think if he lived in an age that Judge Guido

Calabresi had characterized as an “orgy of statute making,” an age in which statutes have

become the primary source of law.292

The modern predicament was deftly framed by

then chief Justice of the California Supreme Court, Roger J. Traynor (1900-1983):

[A statute] may cast a heavy shadow on the common law or a light one,

or it may idly plane until some incident sends it careening into action. The hydra-headed problem is how to synchronize the unguided missiles launched by

legislatures with a going system of common law.293

This is precisely the dilemma that concerns Justice Scalia so much. The title to

his The Tanner Lectures on Human Values, delivered at Princeton University on March

291 Kent, Commentaries, 469. 292 Calabresi, Guido. A Common Law for the Age of Statutes. (Cambridge: Harvard University Press,

1982), 1. 293 Traynor, Roger J. Statutes Revolving in Common-Law Orbits,” 17 Cath. U L. Rev. 401, 401-401,

quoted in Calabresi, Common Law, 183.

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8-9, 1995 reveals this concern: “Common-Law Courts in a Civil-Law System; The Rôle

of United States Federal Courts in Interpreting the Constitution and laws.”

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The Twentieth Century

Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes, Jr. (1841-1935) served on the U.S. Supreme Court for

three full decades between 1902 and 1932. Before that he served in the U.S. Army

during the Civil War, being wounded three times, then went on to practice law for a

period of fifteen years, during which he edited the American Law Review and the twelfth

edition as Chancellor Kent’s Commentaries and lectured at Harvard. Toward the end of

this period, he presented a series of lectures at the Lowell Institute in Boston on the

common law that were published in book form as The Common Law.294

As he received

an appointment of Weld Professor of Law in 1882, he also accepted an appointment to

the Supreme Judicial Court, where he served for two decades.295

Holmes is one of the

most oft-quoted writers in all types of legal literature. Just as the progressives lauded his

statement in Lochner that the “Fourteenth Amendment does not enact Mr. Herbert

Spencer's Social Statics,” as the Court refused to approve a New York regulation that

limited the hours of work for bakery employees, conservatives react likewise to his

statement in Buck v. Bell that “Three generations of imbeciles are enough.,” as he wrote

for the court that approved a Virginia statute that provided for the sexual sterilization of

294 The Lowell Institute the Lowell Institute—still going strong today in partnership with public television

station WGBJ in Boston is an organization created to carry out the 1836 bequest of John Lowell Jr., to

make free public lectures available to the citizens of Boston. 295 Justice Holmes has—and continues to receive one laudatory epithet after another. For example,

“Holmes rates by common consent with John Marshall as one of the two greatest Justices in Supreme Court

history.” The New York Times. Review of Honorable Justice The Life of Oliver Wendell Holmes. By

Sheldon M. Novick, August 20, 1989. However, one, the late Grant Gilmore, noted author and Sterling Professor Emeritus of Law at Yale Law School, has written “Put out of your mind the picture of the

tolerant aristocrat, the great liberal, the eloquent defender of our liberties, the Yankee form Olympus. All

that was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life

nothing but a continuing struggle in which the rich and powerful impose their will on the poor and week.”

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inmates of institutions supported by the State who shall be found to be afflicted with an

hereditary form of insanity or imbecility.296

Justice Holmes began The Common Law with a well-known passage that instantly

gives the flavor of his approach to law.

The life of the law has not been logic: it has been experience. The felt necessities

of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their

fellow-men, have had a good deal more to do than the syllogism in determining

the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it

contained only the axioms and corollaries of a book of mathematics. In order to

know what it is, we must know what it has been, and what it tends to become.

We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new

products at every stage. The substance of the law at any given time pretty nearly

corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired

results, depend very much upon its past.297

Holmes was one of the first to emphatically critique the notion that judges merely

declared the substance of the law contained in some disembodied form and that the

Fourteenth Amendment’s Due Process Clause embodied a substantive right. Rejecting

the Court’s holding in Lochner v. New York to the effect that the Fourteenth Amendment

contained a “liberty of contract” right when it invalidated a New York regulation that

limited the number of hours bakery employees could work in a day and in a week.298

Holmes, in dissent, remarked,

296 Lochner v. New York, 198 U.S. 45, 75 (1905) and Buck v. Bell, 274 U.S. 200, 207 (1927) 297 Holmes, Oliver Wendell, Jr. The Common Law (Boston: Little, Brown, and Company, 1881) 1. 298

Justice Peckham, writing for the Court stated, “In every case that comes before this court, therefore,

where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable and appropriate exercise of the police

power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the

individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him

appropriate or necessary for the support of himself and his family?”198 U.S. 45, 56

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A constitution is not intended to embody a particular economic theory, whether

of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of

our finding certain opinions natural and familiar or novel and even shocking

ought not to conclude our judgment upon the question whether statutes

embodying them conflict with the Constitution.299

These comments are as relevant today as they were in 1905, for although the court

rejected the Lochner’s approach three decades later in West Coast Hotel Co. v. Parrish,

the Court revived it with the creation of a right of privacy, the incorporation of the

substantive portions of the Bill of Rights and the limitations placed on punitive

damages.300

Not only Justice Holmes’ dissent in Lochner, but Chief Justice Hughes’

opinion for the Court in Parrish finds contemporary expression in the opinions of Justice

Scalia, who has written, “Many believe that [the Constitution] is in effect a charter for

judges to develop an evolving common law of freedom of speech, of privacy rights, and

the like. I think that that is wrong—indeed . . . it frustrates the whole purpose of a written

299 198 U.S. 45, 75-76 (1905) 300 Writing for the Court in West Coast Hotel Co. v. Parrish, Chief Justice Hughes wrote, “The Constitution

does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without

due process of law. In prohibiting that deprivation the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty

safeguarded is liberty in a social organization which requires the protection of law against the evils which

menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus

necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its

subject and is adopted in the interests of the community is due process.” 300 U.S. 379, 391 (1937) This

quote does not so much abandon a substantive due process of law as it redefines it in terms of substantive

liberty for the community as opposed to the individual. It was not until 1963 when Justice Hugo Black

pronounced the actual death of substantive due process─at least in the economic sphere in Ferguson v.

Skrupa, 372 U.S. 726. Justice Black, pointing out that the “Both the District Court in the present case and

the Pennsylvania court in Stone adopted the philosophy of Adams v. Tanner, and cases like it, that it is the

province of courts to draw on their own views as to the morality, legitimacy, and usefulness of a particular

business in order to decide whether a statute bears too heavily upon that business and by so doing violates due process,” flatly stated that “Under the system of government created by our Constitution, it is up to

legislatures, not courts, to decide on the wisdom and utility of legislation. There was a time when the Due

Process Clause was used by this Court to strike down laws which were thought unreasonable, that is,

unwise or incompatible with some particular economic or social philosophy.” (728, 729)

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constitution.”301

Scalia addressed the Court’s placing substantive limits on punitive

damage awards in state courts, saying, “I do not regard the Fourteenth Amendment's Due

Process Clause as a secret repository of substantive guarantees against ‘unfairness’ —

neither the unfairness of an excessive civil compensatory award, nor the unfairness of an

‘unreasonable’ punitive award. What the Fourteenth Amendment's procedural guarantee

assures is an opportunity to contest the reasonableness of a damages judgment in state

court; but there is no federal guarantee a damages award actually be reasonable.”302

While Justice Holmes has written extensively on various aspects of the law, we

will concentrate on a very short piece he wrote in 1899 about the theory of

interpretation.303

Justice Holmes, responding to an essay by F. Vaughn Hawkins who had

a view of interpretation contrary to that of Holmes, put forth a theory [read: explanation]

of legal interpretation which he called the “external principle of construction.”304

Holmes’ position is that any word in the text that “generally has several meanings, even

in the dictionary. You have to consider the sentence in which it stands to decide which of

301 Scalia, Interpretation, 13 Just as Scalia denied the distinction between the term “legislative intent” and

“judicial intent,” Justice Holmes denied any distinction between the so-called “will of the law” and “will of the judge.” See White, J. Edward. Justice Oliver Wendell Holmes: Law and the Inner Self. (New York:

Oxford, 1993), 487ff. 302 BMW of N. Am. v. Gore, 517 U.S. 559, 598-599 (U.S. 1996) This decision took the position that a

punitive damage award of more than 500 times the compensatory damages violated the Due Process

Clause. In State Farm Mutual Automobile Insurance v. Campbell, 538 U.S. 510 (2003), the Court held that

any punitive award with a higher ration than 9 to 1 was constitutionally suspect. 303 Holmes, Oliver Wendell, Jr. “The Theory of Legal Interpretation.” 12 Harv. L. Rev., No. 6, 417 (1899). 304 F. Vaughan Hawkins was a jurist that wrote a book entitled A Preliminary Treatise on Evidence at the

Common Law in 1896 with an appendix [Appendix C] entitled “On the principles of legal interpretation,

with reference especially to the interpretation of wills.” Hawkins conflicted with Justice Holmes with his

beginning statement—“it may be well to state that by the Principles of Interpretation I mean the theoretical,

rather than the practical, principles: the principles of the Science rather than the Art.” (p. 37) As Justice Holmes pointed out: “It is true that in theory any document purporting to be serious and to have some legal

effect has one meaning and no other, because the known object is to achieve some definite result. It is not

true that in practice (and I know no reason why theory should disagree with the facts) a given word or even

a given collocation of words has one meaning and no other.” Holmes, Legal Interpretation, 417.

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those meanings it bears in the particular case.”305

Thus, the text alone is insufficient to

determine its meaning. So, even though the text alone is insufficient to garner its

meaning, Holmes does not necessarily approve of getting into the mind of the author to

determine authorial intention. To be sure, although he approves going outside the text to

determine meaning, he looks for what the words in the text means, not necessarily what

the author intended. “We ask, not what this man meant, but what those words would

mean in the mouth of a normal speaker of English, using them in the circumstances in

which they were used, and it is to the end of answering this last question that we let in

evidence as to what the circumstances were.”306

For Justice Holmes, an author—be it a

testator, a contracting party or a legislator—is presumed to realize that the “words must

be sufficient for the purpose [intended] when taken in the sense in which they would be

used by the normal speaker of English under his circumstances.”307

Although Justice Scalia and Justice Holmes agreed on staying with the text

insofar as legislative intent is concerned, Scalia might disagree with Holmes where the

latter believed it was permissible to go to the common law to obtain the meaning of an

unclear text. Justice Scalia disapproves of canons of interpretation to the extent they

come from the common law. As he has written, “To the honest textualist, all of these

preferential rules and presumptions are a lot of trouble. It is hard enough to provide a

uniform, objective answer to the question whether a statute, on balance, more reasonably

means one thing rather than another. But it is virtually impossible to expect uniformity

and objectivity when there is added, on one side or another of the balance, a thumb of

305 Holmes, Legal Interpretation, 417. 306 Holmes, Legal Interpretation, 417-418. 307 Holmes, Legal Interpretation, 420.

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indeterminate weight [that is created by the rules of presumption]. . . . There are of course

no answers to these questions, which is why these artificial rules increase the

unpredictability, if not the arbitrariness, of judicial decisions.”308

Moreover, Justice

Scalia questions the authority of judges to create extrinsic-source canons, e.g., legislative

intention and history, and policy-based canons from whatever source. As Justice Scalia

put it, regardless of “whether these dice-loading rules are bad or good, there is also the

question of where the courts get the authority to impose them.”309

On point on which the two agree is that the text is to be understood in its ordinary

meaning as seen by the expected audience that reads it. As we have seen Holmes put it,

the “words must be sufficient for the purpose [intended] when taken in the sense in which

they would be used by the normal speaker of English under his circumstances.”310

Justice Scalia put it this way: “I will consult the writings of some men who happened to

be Framers. . . . 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.”311

Justice Holmes would follow with the following

statement: “[W]e ask, not what this man meant, but what those words would mean in the

mouth of a normal speaker of English, using them in the circumstances in which they

308

Scalia, Interpretation, 28. Recall that we saw on page 21 that Justice Scalia favored only canons related

to rules of grammar, syntax and logical inferences, and disapproved of substantive canons or policy rules derived from the Constitution, statutes or the common law. 309 Scalia, Interpretation, 28-29. 310 See page 132. 311 Scalia, Interpretation, 38.

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were used, and it is to the end of answering this last question that we let in evidence as to

what the circumstances were.”312

It is to be noted that while Justice Scalia will admit the statements of the authors

of the Constitution and others that played a rôle in government and politics at the time of

its adoption in order to determine the meaning of the text, he is unwilling to grant the

same to legislators. On this point, it is interesting to consider one of Justice Holmes’

statements that is frequently used by textualists: “We do not inquire what the legislature

meant; we ask only what the statute means.”313

Justice Holmes, who equates the interpretative process regarding legislation as co-

extensive with contracts—and will also, for that matter—presented the situation of where

two contracting parties did not have the same opinion about what a text meant. In this

situation, there are two options: both parties can accept the judge’s interpretation or the

contract can be avoided. Since the latter option is unacceptable for practical reasons,

“each party to a contract has notice that the other will understand his words according to

the usage of the normal speaker of English under the circumstances, and therefore cannot

complain if his words are taken in that sense”314

Yet, this principle can be extremely

problematic in a case where the text can be differently understood by “normal speakers of

English. I offer the case of Dunloy v. Dunloy, 2003 Tenn. App. LEXIS 394 (Tenn. Ct.

App. 2003) which illustrates the difficulty of applying abstract rules of construction—

much like Justice Holmes would presumably approve. This case involved a dispute

over the interpretation of a provision in a marital dissolution agreement (MDA) dealing

312 Holmes, Interpretation, 417. 313 Holmes, Interpretation, 419. 314 Holmes, Interpretation, 419.

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with the method of distribution of the husband’s defined benefit retirement plan. The

agreement provided in part: ¶ Mr. Dunloy agrees that his account balance, as of April 29,

1994, with The Savings Plan of the Saudi Arabian Oil Company (Vanguard Funds

account # 462- 78- 8754) shall be divided equally between the parties. Mr. Dunloy

hereby assigns to Mrs. Dunloy one-half (1/2) of his account balance in said Plan as of

April 29, 1994. The division of Mr. Dunloy's account balance with The Savings Plan of

the Saudi Arabian Oil Company as of April 29, 1994 shall be further effectuated through

the entry of a Qualified Domestic Relations Order.

Mr. Dunloy agrees that his account balance, as of April 29, 1994, with The

Retirement Income Plan of the Saudi Arabian Oil Company, net of current offsets value

at retirement in the approximate amount of $ 32,326.48 shall be divided equally with

Mrs. Dunloy. Mr. Dunloy hereby assigns to Mrs. Dunloy one-half (1/2 ) of his account

balance with The Retirement Income Plan of the Saudi Arabian Oil Company, net of

current off-sets value at retirement in the approximate amount of $ 32,326.48. The

division of Mr. Dunloy's account balance, net of offset value at retirement, shall be

further effectuated through the entry of a Qualified Domestic Relations Order.

Ms. Dunloy interpreting the contract as calling for a deferred distribution method

called the for the coverture fraction method, and Mr. Dunloy wanted to use what is called

the net present value method. Using Mr. Dunloy’s method meant that Ms. Dunloy could

expect monthly benefit upon his retirement at age sixty of $ 565, or a lump sum at that

time of approximately $ 60,000. Using Mrs. Dunloy’s method, she would receive a

monthly benefit at Mr. Dunloy's retirement at age sixty in the amount of $ 1,087 per

month, or a lump sum payment of $ 161,702. As the Supreme Court defined its task, “the

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parties herein agreed on the distribution and valuation method, and our task is to

determine the intent of the parties with regard to the division of the retirement income

plan from the words the parties used in paragraph. After reviewing how various terms

are used in the business of defined benefit retirement plans, the court concluded that “we

interpret the language used by the parties in paragraph 35 of their MDA as inconsistent

with any intent to use the deferred distribution method and consistent with an intent to

use the net present value method.”

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Roscoe Pound

Although Nathan Roscoe Pound (1870-1963) earned his B.A, M.A, and Ph.D.

degrees in botany at the University of Nebraska, he returned to Lincoln in 1890 following

a year of studying law at Harvard to practice law and teach law at the University of

Nebraska from 1892 to 1903. Following short stints on the law faculties of Northwestern

and the University of Chicago, Pound began teaching law at Harvard in 1910, serving as

dean of the law school from 1916-1936.

From beginning to end, Pound was a rare commodity. Having entered the

University of Nebraska at age twelve and became a first-rate Ph. D.-botanist by age

seventeen, he later served as Nebraska’s state botanical survey from 1892 to 1903, out of

this work came the discovery of a rare lichen that was named “Roscopoundia.” Upon

resigning the dean’s position, Harvard granted him a “roving professorship” that entitled

him to teach throughout the university’s curriculum. Pound retired from Harvard in

1947. After writing more than forty-four books, his career was capped by a five-volume

magnum opus entitled Jurisprudence that was begun in 1911 and completed in 1952, and

twice revised (1949-1952, 1956-1958).

With his scientific background, it is not surprising that Pound is associated with

the school of though called sociological jurisprudence, which was a variant of the early

twentieth-century progressive movement that questioned the classical notion that law

existed apart from politics and was, in fact, a neutral dimension of the body politic.

While some commentators have made much of a perceived difference between Pound’s

sociological jurisprudence and the legal realism of Karl Llewellyn and others, both are

generally recognized as a frontal attack on formalism or classical legal thought of the

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nineteenth century.315

The progressive tendencies of both variants sought to make

explicit the implicit dimension of formalism, namely, serving the needs and goals of

society. Whereas the latter denied such a rôle, the former not only acknowledged the

rôle, it embraced it and sought to make it scientific, applying the methods of modern

social-scientific investigation.

The work of Pound’s that we examine here, his address delivered before the

American Political Science Association on December 28, 1911, comes during what may

be called his “early period.”316

Pound began this period with a speech before the

American Bar Association in St. Paul, Minnesota that staked out the progressive notion

that “Law must be stable, and yet it can not stand still.”317

This speech was credited with

touching the soul of the profession and being for many years to come “the catechism for

all progressive-minded lawyers and judges.”318

Rejecting the classic formalist notion that

the three branches of government has its own unique function: the legislature branch

legislates, the executive branch executes and the judicial branch adjudicates,319

Pound

declared that the notion is faulty because it “it confines the judicial function to mere

315 “Too much has been made of the distinction between Legal Realism and what Roscoe Pound had called

‘sociological jurisprudence,’” at least before World War I. Morton J. Horwitz. The Transformation of

American Law: 1870-1960-The Crisis of Legal Orthodoxy. (New York: Oxford University Press, 1992), 169. 316 Pound, Roscoe. “Courts and Legislation.” 7 American Political Science Review No. 3 (August, 1913)

361. During the 1930s, Pound appeared to become disappointed in many of the progressives—even those

that sought to fulfill his sociological jurisprudence enterprise. Some commentators say that Pound made a

conservative shift in his second period that began during the heydays of the New Deal. As Legal Realists

like Llewellyn and Frank began to push the envelop regarding the lack of determinacy in law while

aggressively pushing the New Deal social and economic program through law, Pound began to—if not

become more conservative, at least he appear to be as he resisted courts becoming “quasilegislatures.”: 317 Speech entitled “The Causes of Popular Dissatisfaction with the Administration of Justice,” given in St.

Paul, Minnesota before the American Bar Association on 318

?????. Interpretation of Modern Legal Philosophies: Essays in Honor of Roscoe Pound, Paul Sayre,

editor. (NY: Oxford University Press, 1947), 427. 319 The term “adjudicate” breaks down as follows: “ad” a prefix occurring in loanwords from Latin, where

it meant “toward;” “judge” to pass legal judgment on; and “-ate” a suffix used here as a stem on which a

verb could be formed. Dictionary.com Unabridged (v 1.1). Based on the Random House Unabridged

Dictionary, © Random House, Inc. 2006.

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application of a rule formulated in advance by an extra judicial agency proceeds upon an

eighteenth century conception of law and of law-making which we cannot accept

today.320

Pound used a metaphor supplied by a German writer to illustrate the classic

formalist position. The court is a judicial slot machine, existing prior to legislation or

received principles. All one has to do is put the facts in the machine and pull the

handle—out comes the judicial result.321

Pound quoted with favor John Austin’s critique

of the common law’s “childish fiction employed by our judges, that judiciary or common

law is not made by them, but is a miraculous something, made by nobody, existing, I

suppose from eternity, and merely declared from time to time by the judges.”322

Echoing a frustration that is prevalent among realists today, Pound noted that

“when, as a result of such inquiries, the rule seems to have sprung full-fledged from the

judicial head, the assumption that the judicial function is one of interpretation and

application only leads to the conclusion that the courts are exercising a usurped

authority”323

He goes on to maintain that times have changed: “Today, when all

recognize, nay insist, that legal systems do and must grow, that legal principles are not

absolute, but are relative to time and place, and that juridical idealism may go no further

than the ideals of an epoch, the [formalist] fiction should be discarded.”324

320 Pound, “Courts and Legislation,” 363. 321 The metaphor is from Hermann Kantorowicz, Rechtswissenschaft und Soziologie, (Tübingen, Germany:

J. C. B. Mohr, 1911), 5. 322

From Austin, John. Jurisprudence (4ed), 655. [Lectures on Jurisprudence, or The Philosophy of

Positive Law, two vols., R. Campbell (ed.), 4th edition, rev., London: John Murray, 1879 (Bristol: Thoemmes Press reprint, 2002)]. English John Austin (1790-1859) is credited with establishing the school

of analytical jurisprudence or what today goes by the name of positivism. 323 Pound, “Courts and Legislation,” 365. 324 Pound, “Courts and Legislation,” 365.

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Pound believed that the early analytical jurists had grasped only one-half of the

problem by thinking that a complete code of law could be enacted by a legislative body.

For, as he said, laws must are means to ends that cannot be met by the application of

discretion as well as logic. He wrote that

Hence within somewhat wide limits courts must be free to deal with the

individual case so as to meet the demands of justice between the parties. Any ‘considerable narrowing of these limits, any confining of the judicial function by

too many hard and fast rules soon defeats the purpose for which law exists.325

Though perhaps beginning to sound a bit of a modernistic free-wheeler that

collapses various aspects of judicial decision-making into one seamless process, Pound

nevertheless saw the process as a relatively structured three-step process as follows:

1) Finding the rule to be applied. [This] process may consist merely in laying hold of a

prescribed text of code or statute, in which case it remains only to determine the

meaning of the rule and to apply it. More commonly the first process involves choice

among competing texts or choice from among competing analogies, so that the several rules must be interpreted in order that intelligent selection may be made.

2) Interpreting the rule.

3) Applying the rule to the cause.326

Pound does not consider the steps to be views in a mechanical way. Finding the text, he

says, may be straightforward, but it may not. Finding the applicable law may involve

examining interpreting several alternatives among competing texts and analogies,

requiring an interpretation of the existing choices [genuine] in order to arrive at the best.

However, none of the choices may be found to be appropriate. Thus, when a genuine

interpretation shows that “no existing rule is adequate to a just decision and it becomes

necessary to provide one [spurious] for the time being.”327

325 Pound, “Courts and Legislation,” 365. 326 Pound, “Courts and Legislation” 366. 327 Pound, “Courts and Legislation,” 366.

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Pound stated that a combination of the three-step decision-making process is

mistakenly confused as “interpretation.” As the analytical jurists pointed out, finding a

new rule [spurious] and interpreting an existing rule [genuine] were different steps.328

Austin deemed making a new rule “spurious” because of “his belief in the possibility of a

complete body of enacted rules, sufficient for every cause, [leading] him to regard

[finding a new rule] as out of place in modern law.” Yet, Pound argued that as

“experience has shown, what reason ought to tell us, that this fiction was invented to

cover a real need in the judicial administration of justice and that the providing of a rule

by which to decide the cause is a necessary element in the determination of all but the

simplest controversies.329

“It has been a favorite notion of legislators that the finding of law could be

reduced to a simple matter of genuine interpretation; that a body of enacted rules could be

made so complete and so perfect that the judge would have only to select the one made in

advance for the case in hand, interpret it and apply it.”330

In this respect, Pound mentions

the code of Frederick the Great whose

intention was that all contingencies should be provided for with such careful

minuteness that no possible doubt could arise at any future time. The judges were not to have any discretion as regards interpretation, but were to consult a

royal commission as to any doubtful points, and to be absolutely bound by their

answer. This stereotyping of the law was in accordance with the doctrines of the law of nature, according to which a perfect system might be imagined, for which

no changes would ever become necessary, and which could, therefore, be laid

down once for all, so as to be available for any possible combination of circumstance.

331

328

Pound, “Courts and Legislation,” 367. 329 Pound, “Courts and Legislation,” 367. 330 Pound, “Courts and Legislation,” 368. 331 Pound, “Courts and Legislation,” 368. Examples of similar attempts to restrict or prohibit

interpretations can be found in Justinian’s Code, Code Napoleon and the early nineteenth-century Austrian

civil code—see page 63.

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Another, more contemporary, example Pound gives is Senator Robert M. La Follette’s

statement regarding the ability of legislation to preempt judicial discretion. “These

decisions leave the legitimate business of the country in condition of uncertainty. . . . This

condition I have met by a bill which I have introduced in the Senate. I t enumerates in

plain English every known practice and expedient through which combinations have

stifled competition, and prohibits anyone from engaging in them.”332

Moreover, the half of classical formalism that the analytical jurists did not grasp

was this very point. “Bentham and Austin, who saw clearly enough that the doctrine of

natural law of the eighteenth century was untenable, none the less had the same idea of

the possibility of a perfect code, self-sufficient and adequate to every cause.”333

Following Austin and Bentham, the historical school, mostly Germans who saw law as

emanating—not so much from legislation as from the spirit of the people qua nation and

judges as the representatives of the people’s consciousness, overthrew the notion that

there could be an exhaustive legal code.334

Nevertheless, Pound—as he was prone to

do—saw the historical school as going too far in the opposite direction.335

In sum, Pound saw the relationship of the judiciary to the legislature in

dichotomous terms: “On the one hand, the older analytical theory, heir in this respect to

the eighteenth century, holds that a complete legislative statement of the law upon any

subject may be made in advance, and that judicial law-making is abnormal and due only,

so far as it may be justified, to defects in the legislative prevision. On the other hand, the

332

Senator La Follette in American Magazine, July, 1912. 333 Pound, “Courts and Legislation,” 368. 334 This school was principally represented by Carl Friedrich von Savigny (1779-1861) and Georg Friedrich

Puchta (1798-1846). 335 To be sure, Pound could be as much a part of the avant garde as anyone, yet he never strayed that far

from a moderate position. It is as if he would invariably say, “Yes, but…….”

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historical theory regards such legislative attempts as useless, as attempts to make what

cannot be made, and hence looks upon development of the law by juristic speculation and

judicial decision as the normal and on the whole the only practicable method.”336

While this dichotomy had much to contribute to the relationship of courts to

legislatures, Pound found—as we have seen— both to be lacking in significant ways. In

an important sense, Pound was particularly leery of an ambitious legislative process that

sought to be all things to all situations at all times, regarding which he wrote that while

the

Demos will legislate, and any theory that seeks to put a check upon this activity

will dash in vain against obstinate facts. But it is no less true that much if not most of this legislative activity will prove futile, as most of it has proved in the

past, so long as it proceeds upon the assumption that legislators may lay out a full

and complete scheme in advance, which will suffice for all controversies, so long as it assumes that the general principles of the law and the rules and doctrines of

the legal system into which the legislative enactment is to be fitted and in which

it must take its place may be neglected, and so long as it proceeds upon the idea

that arbitrary expressions of the sovereign will may be given the quality of law by a prefatory “be it enacted.”

337

In this regard, Pound made a pithy observation: “A lesson of legal history which must be

learned both by legislators and by courts is that the law-maker must not be over-

ambitious to lay down universal rules.”338

Yet, Pound was not willing to abandon the notion that we live under a system of

law, not a system of people. “Since the fundamental idea of law is that of a rule or

principle underlying a series of judicial decisions, it is obvious that the power of finding

the law, which a tribunal must be allowed to exercise, is to be governed by some sort of

336 Pound, “Courts and Legislation,” 369. 337 Pound, “Courts and Legislation,” 370. 338 Pound, “Courts and Legislation,” 370.

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system, or we shall have a personal rather than a legal administration of justice.”339

Pound was quick to suggest that such a system cannot come from a complete codification

effort by the legislature. Pound next examines three candidates for such a system.

First, take traditional legal principles [that implicitly, but not explicitly reflect a

status quo political/economic point of view] then deduce the rules accordingly. Second,

take contemporary political/economic goals and deduce compatible rules. Third, using

an empirical method of construction and analysis, continually correct the tentative results

of either a priori reasoning based on experience. It should not be surprising that Pound,

the scientist, favored the third way. As Pound put “If the results are not just, a new line is

taken, and so on until the best line is discovered.”340

Pound has two major comments to make regarding the relationship between the

judiciary and the legislature. First, “the legislator must bear in mind that his enactment

will not stand alone. . . . [N]othing has so profound an effect upon the practical workings

of an enactment as its relation to the legal system into which it is to be set and the mode

in which its adjustment thereto has been studied and provided for.” Second, Pound

recognized that judges in implementing the first point could and have committee abuses.

In the combination of these two points Pound finds that the location of most of the

friction between courts and the public “has been due to this notion of the finality of the

law on the one hand and the notion of the finality of legislative power on the other

hand.”341

339 Pound, “Courts and Legislation,” 370. 340 Pound, “Courts and Legislation,” 371. 341 Pound, “Courts and Legislation,” 372.

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According to Pound, the practice of law was grounded in Blackstone’s eighteenth-

century natural law theory, “set[ting] up a fixed, arbitrary, external standard by which all

new situations and new doctrines are to be tested.”

Thus scholar and lawyer have concurred in what became for a time a thorough-

going conviction of the American lawyer, that the doctrines of the common law are part of the universal jural order. When he spoke of law, he thought of these

doctrines. He held that constitutions and bills of rights are declaratory of them.

He construed statutes into accord with them.342

Pound believed the law to be lagging behind contemporary classical American

political thought, which viewed sovereignty in positivistic rather than natural law terms.

He described the different views in dichotomous phrases that capture the essence of the

difference between the schools of legal positivism and natural law:

While the lawyer believes that the principles of law are absolute, eternal, and of

universal validity, and that law is found, not made, the people believe no less

firmly that it may be made and that they have the power to make it. While to the lawyer the state enforces law because it is law, to the people law is law because

the state, reflecting their desires, has so willed. While to the lawyer law is above

and beyond all will, to the people it is but a formulation of the general will. Hence it often happens that when the lawyer thinks he is enforcing the law, the

people think he is overturning the law.343

One can readily see Justice Scalia quoting Pound who concluded that “The [common]

lawyer’s theory often leads him to pay scant attention to legislation or to mold it and

warp it to the exigencies of what he regards as the real law.”344

But, then, true to form, Pound saw problems as well with the public’s view of

proper lawmaking. “On the other hand, the people’s theory that law is simply a

conscious product of the human will tends to produce arbitrary and ill-considered

342 Pound, “Courts and Legislation,” 374. 343 Pound, “Courts and Legislation,” 375. These comments will resonate with Justice Scalia’s argument

that the willingness of the common lawyer/judge to read constitutional and statutory texts as inferior to the

common (natural) law defeats the demands of classical democratic theory. 344 Pound, “Courts and Legislation,” 375.

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legislation impossible of satisfactory application to actual controversies.”345

Nonetheless,

he finds a synthesis of the two view points, with legislator recognizing the value of

enacting more effective legislation and lawyers and judges gaining more respect for the

legislative process.

[digression: It is important to understand Pound’s insistence that “law” is

composed of more than mere legal precepts and principles. While the notion of law

embraces these, it also includes

a body of traditional ideas as to how legal precepts should be interpreted and

applied and causes decided, and a traditional technique of developing and applying legal precepts whereby these precepts are eked out, extended, restricted,

and adapted to the exigencies of administration of justice [and] a body of

philosophical, political, and ethical ideas as to the end of law, and as to what legal precepts should be in view thereof, held consciously or subconsciously,

with reference to which legal precepts and the traditional ideas of application and

decision and the traditional technique are continually reshaped and given new

content or new application.346

This broad approach to the concept of law is noteworthy for, as Pound points out,

analytical or positivist inclined theorists/judges, who maintain that law is whatever the

institutional lawgiver issues and nothing more, will not consider the third attribute.347

Examples of legal precepts are “consideration” in the law of contracts, “fault” in

the law of torts and “negotiability” in commercial law. Examples of the second

dimension—shared notions of how precepts are interpreted and applied—include the use

and acceptance of the doctrine of stare decisis, and the preference for substituted

remedies over specific remedies that seek to either prevent harm of undo it rather than

345 Pound, “Courts and Legislation,” 376. 346 Pound, Roscoe, “The Theory of Judicial Decision.” 36 Harv. L. Rev. No. 6 (April, 1923) 641, 645. 347

As Justice Scalia would no doubt put it, law is law as written because Congress, for example, enacted

the statute and its meaning must be garnered from within its four corners, and, whether for good or ill, it is not up to the judge to declare. Or as Justice Gray put it in Riggs v. Palmer, “If I believed that the decision .

. . could be affected by considerations of an equitable nature, I should not hesitate to assent to views which

commend themselves to the conscience. But the matter does not lie within the domain of conscience. We

are bound by rigid rules of law.” 115 N.Y. 506, 515 (1889)

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granting compensation following injury. Another example of the second dimension is

how statutes can be viewed as specific responses to particular situations rather principles

to be applied to other situations by analogy. As Pound noted, examples of the second

dimension are “modes of looking at and handling and shaping legal precepts.”

Pound illustrates the third dimension—notions of the social order and ends of

law—with examples from history. In the infancy of law in the United States when there

was a need to interpret new constitutions and statutes alongside existing English law,

judges “fell back upon an idea of ‘the nature of free government’ or the nature of

American government’ or the ‘nature of American institutions’—an idealized picture of

the legal and political institutions of pioneer America.” Again, when judges considered

legislation at the end of the nineteenth century as the United States was transitioning from

a rural, agrarian society to and urban, industrial society, they “turned to an idealized

picture of the economic order with which they were familiar, the principles of which had

been set forth by the classical political economists. They pictured an ideal society in

which there was a maximum of abstract individual self-assertion.”348

Pound argued that “[W]e deceive ourselves grossly when we devise theories of

law or theories of judicial decision that exclude such things from ‘ the law.’” Indeed,

Pound insisted that to do so invites public disrespect. As he put it, “To insist upon a

theory which ignores them as the explanation of a process in which they visibly control

invites ignorant attacks upon the courts and must, in the end impair lay confidence in our

judicial institutions much more than frank recognition of the facts and endeavor to give a

scientific account of them.” Indeed, Pound goes so far as to claim that “The ‘law-that-is’

348 Pound, “Judicial Decision,” 645-654. No doubt, Justice Breyer, with his notion of implementing the

democratic goals he finds in the constitutional framework, would find support in Pound’s overall approach.

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in the sense of the analytical jurist is an illusion”349

As usual, Pound sought to achieve a

balance of varying and vying factors.

Courts and lawyers may not ignore the demand for stability even in periods of the

most rapid growth. Equally, even in periods of exceptional legal stability, legal precepts gradually change their content if not their form, and are made to fit the

changes that constantly go on in the social life that is to be governed by them.350

Pound quotes, as did Cardozo, Yale law professor John F. Dillon’s pithy statement that

“Ethical considerations can no more be excluded from the administration of justice than

one can exclude the vital air from his room and live.”351

Pound is critical of the

analytical jurisprudence of John Austin that removed much of what is law by denying it a

non-positivist dimension, claiming that “led to a merely superficial certainty; to a. belief

in a mechanical, logical application of fixed legal precepts in the teeth of the facts.”352

]

Specifically regarding the process of interpretation of statutes, Pound once again

resorts to the distinction between genuine and spurious interpretation, the former locating

and applying the appropriate choice of existing law and the latter requiring a new rule

when no appropriate choice appears to exist as in the case of no statute having anticipated

a potential problem. Pound believes in situations where a statue’s constitutionality is

being considered, it will always be a case of genuine interpretation.

Although Pound viewed the judicial decision-making function in broad terms, he

was not in favor of expanding spurious interpretation. Pound was one of the noted

progressives that viewed the mechanical formalism of the Lochner Era with disdain.

According to Pound, the undesirable “fiction involved in calling the judicial process of

349 Pound, “Judicial Decision,” 654-655. 350 Pound, “Judicial Decision,” 657. 351 Dillon, John Forrest. Laws and Jurisprudence of England and America. (Boston: Little, Brown , and

Company, 1894), 17. 352 Pound, “Judicial Decision,” 660.

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finding the law by the name of interpretation leads to . . . mischief. . . . But such

interpretation is spurious. It is legislation.”353

Finally, Pound discusses the sociological nature of the legislative process and the

implications for judicial interpretation. Describing the legislator as

[T]he law-maker is the man of his time, thoroughly saturated with the thoughts of

his time, thoroughly filled with the culture that surrounds him, that he works with the views and conceptions which are drawn from his sphere of culture, that he

speaks with words that have a century of history behind them and whose

meanings were fixed by the sociological process of a thousand years of linguistic development, and not through the personality of the individual. . . . Hence the

principle: rules of law are not to be interpreted according to the thought and will

of the law-maker, but they are to be interpreted sociologically, they are to be

interpreted as products of the whole people, whose organ the law-maker has become.

354

Pound ends this essay with a summary of the points made. “With respect to

interpretation, then, I take it our tasks are (1) to rid ourselves here also of absolute

theories, and in particular of the remains of the dogma of finality of the common law, (2)

to repeal what ought to be repealed directly and straightforwardly and not store up

mischief for the future by demanding indirect repeal by spurious interpretation, (3) above

all to develop a sociological method of applying rules and thence if need be of

developing new ones by the judicial power of finding the law.”355

353 Pound, “Courts and Legislation,” 378. 354 Pound, “Courts and Legislation,” 379-380, quoting Kantorowicz, Rechtswissenschaft und Soziologie, 9. 355 Pound, “Courts and Legislation,” 380.

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Benjamin Nathan Cardozo

Benjamin Nathan Cardozo (1870-1938) was one of the most notable American

jurists. ‘After practicing law for a dozen years, he served as a member of New York’s

highest court from 1917-1932 and as a member of the United States Supreme Court from

1932-1938. Justice Cardozo’s opinions—both state and national—contain some of the

most quoted statements on the nation’s laws and legal system. At age 15 Cardozo

entered the same Columbia College we met through Lieber and Kent. After studying law

at Columbia, he entered private practice in 1889. Aside from his judicial opinion,

Cardozo wrote off the bench. His The Nature of the Judicial Process (1921), The Growth

of the Law (1924), and The Paradoxes of Legal Science (1928) are considered

jurisprudential classics.

Justice Cardozo’s view of the proper rôle of judges in the judicial process can be

summed up by his statement from his 1921 Storrs Lecture at Yale that eventually became

The Nature of the Judicial Process:356

My analysis of the judicial process comes then to this, and little more: logic, and

history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which

of these forces shall dominate in any case must depend largely upon the

comparative importance or value of the social interests that will be thereby promoted or impaired.

357

Cardozo takes these four factors [logic, history, custom and utility] and creates a

set of principles—or organon, as he calls it—for how judges should go about their

business of deciding cases. Before giving the details of his organon, Cardozo makes

356 The pagination used here is from the version produced by The American Studies Program at the

University of Virginia. See: http://xroads.virginia.edu/~HYPER/CARDOZO/CarNat.html. 357 Cardozo, Judicial Process, 111.

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some general comments on the judicial process that have implications for the

interpretative process.

As many, but by no means all, judges are willing to admit, “There is in each of us

a stream of tendency, whether you choose to call it philosophy or not, which gives

coherence and direction to thought and action. Judges cannot escape that current any

more than other mortals.”358

Candidly admitting the impossibility of ruling out a certain

amount of subjectivism, Cardozo stated, “We may try to see things as objectively as we

please. Nonetheless, we can never see them with any eyes except our own. To that test

they are all brought—-a form of pleading or an act of parliament, the wrongs of paupers

or the rights of princes, a village ordinance or a nation's charter.”359

Cardozo believed that seldom would the text exist that would not require

interpretation. “[C]odes and statutes do not render the judge superfluous, nor his work

perfunctory and mechanical. There are gaps to be filled. There are doubts and

ambiguities to be cleared. There are hardships and wrongs to be mitigated if not avoided.

Interpretation is often spoken of as if it were nothing but the search and the discovery of a

meaning which, however obscure and latent, had nonetheless a real and ascertainable pre-

existence in the legislator's mind. The process is, indeed, that at times, but it is often

something more. The ascertainment of intention may be the least of a judge's troubles in

358 Cardozo, Judicial Process, 11. In connection with the notion of “gaps to be filled,” the famous quote

from an opinion by Justice Roberts in United States v. Butler that “the judicial branch has only one duty: to

lay the article of the constitution which is invoked beside the statute which is challenged and to decide

whether the latter squares with the former. . . neither approv[ing] nor condemn[ing] any legislative policy,”

appears to be inapplicable for the obvious reason that if upon applying the primary document thereby

revealing a gap in it, the judge must “fill the gap with something aliunde—not part of the text. (297 U.S. 1

(1936)). Notice nonetheless that Justice Brandeis made a similar observation about statutory interpretation:

“[I]n every case involving a statute, the state court must perform . . . two functions essentially different. First the court must construe the statute; that is, determine its meaning and scope. Then it must apply the

statute, as so construed, to the facts of the case.” Justice Brandeis, dissenting in Dahnke-Walker Milling

Co. v. Bondurant, 257 U.S. 282, 294-295 (1921). 359 Cardozo, Judicial Process, 12.

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ascribing meaning to a statute. ‘The fact is,’ says Gray in his lectures on the Nature and

Sources of the Law, ‘that the difficulties of so-called interpretation arise when the

legislature has had no meaning at all; when the question which is raised on the statute

never occurred to it; when what the judges have to do is, not to determine what the

legislature did mean on a point which was present to its mind, but to guess what it would

have intended on a point not present to its mind, if the point had been present.’”360

So,

[Lorenz] Brütt:361

“One weighty task of the system of the application of law consists

then in this, to make more profound the discovery of the latent meaning of positive law.

Much more important, however, is the second task which the system serves, namely the

filling of the gaps which are found in every positive law in greater or less measure. You

may call this process legislation, if you will. In any event, no system of jus scriptum

[written law] has been able to escape the need of it.”362

111 At the end of this quotation, it is clear that Cardozo thinks that interpreting a

document with an open-ended text must necessarily involve common law approach to

interpretation. “Above all in the field of constitutional law, the method of free decision

has become, I think, the dominant one today. The great generalities of the constitution

360 Cardozo, Judicial Process, 13-14. The reference to Gray is John Chipman Gray (1839-1915), one of the

most influential legal scholars of the nineteenth century. He was a judge advocate in the Civil War,

following which he practiced law and taught at Harvard’s Law School until the final years of his life.

Gray’s best-known work is his Nature and Sources of the Law, (NY: Columbia University Press, 1909).

The quote can be fond on page 173 of a posthumously published second edition by McMillan in 1921. 361 An eminent German legal scholar who wrote in the early part of the twentieth century. See Berthiaume

v. Christgau, 218 Minn. 65, 72 (Minn. 1944) 362 Cardozo, Judicial Process, 13-15. Judge Jerome Frank, lawyer, bureaucrat, judge and writer put it,

“Courts in their interpretation of statutes often cannot avoid some such legislation. The enactment of many

a statute thus, by implication, calls on the courts to engage in supplemental law making. That activity

should always, of course, be modest in scope. But the necessary generality in the wording of many statutes,

and ineptness in the drafting of others, frequently compels the courts, as best as they can, to fill in the gaps, an activity which, no matter how one may label it, is in part legislative. . . . Thus the courts in their way, as

administrators in their way, perform the task of supplementing statutes. In the case of the courts, we call it

‘interpretation,’ or ‘filling in the gaps;’ in the case of administrators we call it ‘delegation’ of authority to

‘supply the details.’” Guiseppi v. Walling, 144 F. 2d 608, 620-622 (C.C.A. 2d, 1944).

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have a content and a significance that vary from age to age. The method of free decision

sees through the transitory particulars and reaches what is permanent behind them.

Interpretation, thus enlarged, becomes more than the ascertainment of the meaning and

intent of lawmakers whose collective will has been declared. It supplements the

declaration, and fills the vacant spaces, by the same processes and methods that have

built up the customary law.”363

[Italics added] A distinction must be drawn between

Cardozo’s common law approach to interpretation and Justice Scalia’s somewhat similar

but different notion. Scalia describes how the “image of the great [law-making] judge

remains with the former law student when he himself becomes a judge, and thus the

common-law tradition is passes on.” In the very next sentence, Scalia states, “All of this

would be an unqualified good, were it not for a trend in government that has developed in

recent centuries, called democracy.”364

The implication is that there is a constitutional,

statutory or regulatory text for every situation and that these texts need no interpretation.

Most commentators, like Justice Cardozo, are not suggesting the text be ignored in order

to make law á la the common law, but simply to use the common law attitude—if you

will—to fill in the gaps and clarify ambiguities.

112 “”Justinian's prohibition of any commentary on the product of his codifiers is

remembered only for its futility.””

112 Cardozo states that while precedents “fix the point of departure,” they are not the

“ultimate sources of the law, supplying the sole equipment that is needed for the legal

armory, the sole tools.”

363 Cardozo, Judicial Process, 16. 364 Scalia, Interpretation, 9.

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112 “Back of precedents are the basic juridical conceptions which are the postulates of

judicial reasoning, and farther back are the habits of life, the institutions of society, in

which those conceptions had their origin, and which, by a process of interaction, they

have modified in turn.”

113 Cardozo describes the simple process of comparing a set of facts with precedent

and finding a plain fit, the process is over. The use of precedent is like the use of a

statute — place the statute alongside the constitutional or statutory and if it corresponds,

the interpretative process.365

The only thing let to do is application. (As we will see with

Gadamer, the two cannot be separated.)

Cardozo asserts, “Some judges seldom get beyond that [mechanical] process in

any case.” He goes on to say “But, of course, no system of living law can be evolved by

such a process, and no judge of a high court, worthy of his office, views the function of

his place so narrowly.” Of course, Justice Scalia, with his dead-on-arrival attitude toward

texts, said, “The [U.S.] Constitution that I interpret and apply is not living but dead, or-as

I prefer to call it-enduring. It means today not what current society and much less the

Court thinks it ought to mean, but what it meant when it was adopted”366

Thus, “If the judge is to [interpret] wisely, some principles of selection there must

be to guide him among all the potential judgments that compete for recognition.”

365 This process was described by the classic statement of the objectivist role of passive judges applying the

law is found in the opinion of Justice Roberts in United States v. Butler, 297 U.S. 1, 62-63, (1936). Roberts

asserted that “the judicial branch has only one duty: to lay the article of the Constitution which is invoked

beside the statute which is challenged and to decide whether the latter squares with the former. . .

neither approv[ing] nor con- demn[ing] any legislative policy.” 366 Justice Scalia’s remarks at a conference “A Call for Reckoning: Religion & the Death Penalty,” January 25, 2002, reported by The University of Chicago Magazine, Vol. 94, No. 4 (April 2002),

http://magazine.uchicago.edu/0204/campus-news/journal-playing.html, accessed March 30, 2005. Judge

Learned Hand, writing before Justice Scalia was born stated, “No judges have ever carried on literally in

that spirit, and they would not be long tolerated if they did.” Hand, “How Far is a Judge Free,” 107.

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Therefore, the issue is now posed as “what are these ‘principles of selection’ and where

do they come from?”

113-114 These “principles of selection” arise out of each and every interpretation,

for “every judgment has a generative power.” “Not all the progeny of principles begotten

of a judgment survive, however, to maturity. Those that cannot prove their worth and

strength by the test of experience are sacrificed mercilessly and thrown into the void.”

Moreover, “The common law does not work from pre-established truths of

universal and inflexible validity to conclusions derived from them deductively. Its

method is inductive, and it draws its generalizations from particulars.”

What we can gather from Cardozo’s remarks is that interpretative rules arise and

work like the substantive rules. Quoting Munroe Smith367

, Cardozo writes, “Every new

case is an experiment; and if the accepted [substantive or interpretative] rule which seems

applicable yields a result which is felt to be unjust, the rule is reconsidered. It may not be

modified at once, for the attempt to do absolute justice in every single case would make

the development and maintenance of general rules impossible; but if a rule continues to

work injustice, it will eventually be reformulated. The principles themselves are

continually retested; for if the rules derived from a principle do not work well, the

principle itself must ultimately be re-examined.”

115 Just as substantive rules are changed so as to achieve a new rule that provides an

outcome that is different from the past, interpretative rules, derived from the same

common law tradition and tested over time can change to bring about a newly desired

367 Munroe Smith (1824-1924), legal scholar, was undoubtedly a colleague of Liber, for he, Smith, played a

leading rôle in the establishment of the political science department at Columbia. He was the first editor of

the Political Science Quarterly, and served as president of the Political Science Association in 1916.

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result.368

Cardozo gives a couple examples of change in a substantive rule: the change

from absolute liability for torts to the notion of liability only if accompanied by fault, and

the relinquishment of the requirement that contracts be under seal.369

These changes or

most of them have been wrought by judges.” Moreover, “For every tendency, one seems

to see a counter-tendency; for every rule its antinomy. Nothing is stable. Nothing

absolute. All is fluid and changeable. There is an endless "becoming." We are back with

Heraclitus.”370

117 Assuming that the “correct” precedent has been located and the “principle

latent within it, has been skillfully extracted and accurately stated,” still yet, “only half or

less than half of the work has yet been done.” Four things remain that can be described as

progressive steps:

1. The rule of analogy or the method of philosophy; (precedent and logical

consistency — traditional positivism according to ) [(which essentially relies on

precedent and logic and, in the case of legislation, on attributing customary or

technical meanings to words and grammatical constructions as the context

dictates)]

2. Historical development or method of evolution; (traditional historical

jurisprudence according to

3. Customs of the community or the method of tradition; and

4. Justice or the method of sociology. (traditional natural law according to )371

368 Get an example of this. 369 Contracts “under seal” are those that are signed and have the (wax) seal of the signer attached 370 Making an important reference to the Greek philosopher Heraclitus [of Ephesus (c540–c470 B.C.E.)] of

the late 6th century who believed in the universal “flux” and the “unity of opposites.” It was Heraclitus that

supposedly said that one can never step into the river at the same place. Some of his remarks are: “People

step into the same rivers, and different waters flow on to them; A road uphill and downhill, one and the

same. Sea is water most pure and most polluted: for fish drinkable and life-giving, for human beings

undrinkable and deadly.” Since every thing — a text in our case — contains opposites, the interpretative

effort is bound to be controversial. 371 According to Barton L. Ingraham Santa Fe, NM, the method of philosophy (which essentially relies on precedent and logic and, in the case of legislation, on attributing customary or technical meanings to words

and grammatical constructions as the context dictates) and the method of history, tradition, and sociology

(which attempts to discern a continuous thread of public policy running through past cases and legislation

that must be adapted by the Court to new and changing situations as the public need requires).

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119 At one point, Cardozo stated, “I have put first among the principles of selection to

guide our choice of paths, the rule of analogy or the method of philosophy. In putting it

first, I do not mean to rate it as most important. On the contrary, it is often sacrificed to

others. I have put it first because it has, I think, a certain presumption in its favor.” At

another he may seem to contradict that position when he stated “In default of other tests,

the method of philosophy must remain the organon of the courts if chance and favor are

to be excluded, and the affairs of men are to be governed with the serene and impartial

uniformity which is of the essence of the idea of law.” It is not a contradiction, however.

Both statements give the method of philosophy, i.e., precedent, priority, with the others

bearing the burden of proving that they should, based on their individual merits, rebut the

method of philosophy’s presumed position.

To give an idea of Cardozo’s notions about lawyering, notice that he compares it

to the work of an artist. Referring to cataloguing the considerations involved in deciding

which method trumps the others or how they merge, he states “In the nature of things

they can never be catalogued with precision. Much must be left to that deftness in the use

of tools which the practice of an art develops.”

120 Cardozo uses two cases that he says are at a variance with each other. “A. agrees

to sell a chattel to B. Before title passes, the chattel is destroyed. The loss falls on the

seller who has sued at law for the price.34 A. agrees to sell a house and lot. Before title

passes, the house is destroyed. The seller sues in equity for specific performance. The

loss falls upon the buyer” 372

372 Fact of the matter is that the cases are not at variance with each other. A quick read of Higgins v.

Murray, 73 N.Y. 252 1878) [Cardozo’s example for the case of the destroyed chattel], reveals that the loss

was suffered by the buy, not the seller. Nonetheless, Cardozo’s point is not invalid for this reason.

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39 A passage in the Nature of the Judicial Process that equates legal principle with

precedent and suggests that different principles/precedents can logically lead to opposite

results captures the essence of the “method of philosophy,” is the following:

The directive force of logic does not always exert itself, however, along a single

and unobstructed path. One principle or precedent, pushed to the limit of its logic, may point to one conclusion; another principle or precedent, followed with

like logic, may point with equal certainty to another. In this conflict, we must

choose between the two paths, selecting one or other, or perhaps striking out upon a third, which will be the resultant of the two forces in combination, or will

represent the mean between extremes.

Cardozo uses the famous case of Riggs v. Palmer, 115 N.Y. 506 (1889) where the

New York Court of Appeals, 373 denied a claim of ownership by a grandchild under his

grandfather’s will because the grandson murdered his grandfather.

As Cardozo points out, several legal principles or precedents were ready at hand

to solve this case. “There was the principle of the binding force of a will disposing of the

estate of a testator in conformity with law. That principle, pushed to the limit of its logic,

seemed to uphold the title of the murderer. There was the principle that civil courts may

not add to the pains and penalties of crimes. That, pushed to the limit of its logic, seemed

again to uphold his title. But over against these was another principle, of greater

generality, its roots deeply fastened in universal sentiments of justice, the principle that

no man should profit from his own inequity or take advantage of his own wrong. The

logic of this principle prevailed over the logic of the others.”

This process of choosing which principle/precedent to follow is “the judicial

process in a nutshell.” (p. 122) The third principle/precedent won out “because the social

373 The state’s highest court — the Supreme Court interestingly being the trial court.

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interest served by refusing to permit the criminal to profit by his crime is greater than that

served by the preservation and enforcement of legal rights of ownership.”

Circuit City Stores, Inc. v. Adams, 529 U.S. 1129 (2000) Circuit City involved the

interpretation of the 1925 Federal Arbitration Act and whether or not Adams, an

employee of Circuit City, was covered by the terms of the statute or exempted by section

1. The pertinent provision of section 1 excludes from the Act’s coverage “contracts of

employment of seamen, railroad employees, or any other class of workers engaged in

foreign or interstate commerce.”374

[Emphasis is added] One interpretative principle,

adopted by the five-member majority, was the principle of “ejusdem generis.” This

principle, Latin for “of the same kind or class,” requires the

The famous or infamous case — depending on one’s point of view — the Church

of the Holy Trinity v. United States, 143 U.S. 457 (1892) illustrates the point of choosing

between interpretative principles that mirrors the process outlined by Justice

Cardozo.375

This case involved the interpretation of the act of February 26, 1885 “to

prohibit the importation and migration of foreigners and aliens under contract or

agreement to perform labor in the United States, its Territories and the District of

Columbia.” The statute in question provided,

. . . it shall be unlawful for any person, company, partnership, or corporation, in

any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or

foreigners, into the United States, its Territories, or the District of Columbia,

under contract or agreement, parol or special, express or implied, made previous to the importation or migration of such alien or aliens, foreigner or foreigners, to

perform labor or service of any kind in the United States, its Territories, or the

District of Columbia.

374 9 U.S.C. § 1. 375 Justice Scalia has tremendous disdain for the reasoning in Church of the Holy Trinity, asserting that

Justice Brewer’s claim to have perceived legislative intention is a “handy cover for judicial intent.”

Interpretation, 18.

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Violation of the act by a contracting party carried a fine of $1000 and $500 for the master

of a vessel who knowingly delivered someone of the prohibited class. There were

exceptions to the act, among them professional actors, artists, lecturers, singers and

domestic servants.

A Mr. John S. Kennedy, whose British gardener was deported because his

employment violated the act, wrote to the customs officer on September 22, 1887 with

the advice that “the Rev. Warren, an English gentleman and an alien, has been called to

the pastorate of the Church of the Holy Trinity in this city [New York], and I am

informed that he is expected to arrive on or about Saturday next.”376

According to a

caustic editorial in the Times contemptuous of Mr. Kennedy, Reverend Warren had

arrived by the time the customs official received Mr. Kennedy’s letter.

Justice David Brewer, writing for the court, began with a discussion of what

Justice Cardozo would place within the method of philosophy by pointing out that “It

must be conceded that the act of the corporation is within the letter of this section.”377

Justice Brewer acknowledges the legitimacy of the Circuit judge sticking to the

principle/precedent of taking a statutory text at face value. Circuit Judge Wallace,

applying the method of philosophy, thus holding that Reverend Warren’s contract came

within the statute citing precedent stated the interpretative principle as follows:

[W]here the terms of a statute are plain, unambiguous, and explicit, the courts are not at liberty to go outside of the language to search for a meaning which it does

not reasonably bear in the effort to ascertain and give effect to what may be

imagined to have been or not to have been the intention of congress. Whenever the will of congress is declared in ample and unequivocal language, that will

must be absolutely followed, and it is not admissible to resort to speculations of

376 The New York Times, September 25, 1887. 377 Church of the Holy Trinity, 143 U.S. 457, 458 (1892).

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policy, nor even to the views of members of congress in debate, to find reasons to

control or modify the statute.378

Judge Wallace cited United States v. Union P. R. Co., 91 U.S. 72, 79 (1875), as precedent

which contained the following language: “In construing an act of Congress, we are not at

liberty to recur to the views of individual members in debate, nor to consider the motives

which influenced them to vote for or against its passage. The act itself speaks the will of

Congress, and this is to be ascertained from the language used. But courts, in construing a

statute, may with propriety recur to the history of the times when it was passed; and this

is frequently necessary, in order to ascertain the reason as well as the meaning of

particular provisions in it.” The Union P. R. Co. opinion cited a case with the following

language written by Chief Justice Taney: “The law as it passed is the will of the majority

of both houses, and the only mode in which that will is spoken is in the act itself; and the

court must gather their intention from the language there used.”379

Notwithstanding Judge Wallace’s use of principle and precedent, Justice Brewer

embraced another interpretative principle that would easily fit into Justice Cardozo’s

method of Justice or sociology: “It is a familiar rule, that a thing may be within the letter

of the statute and yet not within the statute, because not within its spirit, nor within the

intention of its makers.”380

Justice Brewer cited Sir Edward Coke and “All laws should

receive a sensible construction. General terms should be so limited in their application as

not to lead to injustice, oppression, or an absurd consequence. It will always, therefore,

be presumed that the legislature intended exceptions to its language, which would avoid

378 United States v. Rector, etc., of Church of Holy Trinity, 36 F. 303, 304 (U.S. Court of Appeals 1888) 379 Aldridge v. Williams, 44 U.S. 9, 24 (U.S. 1844) 380 Church of the Holy Trinity, 459.

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results of this character. The reason of the law in such cases should prevail over its

letter.”381

As Justice Cardozo stated on page 39,

One principle or precedent, pushed to the limit of its logic, may point to one

conclusion; another principle or precedent, followed with like logic, may point with equal certainty to another. In this conflict, we must choose between the two

paths, selecting one or other, or perhaps striking out upon a third, which will be

the resultant of the two forces in combination, or will represent the mean between extremes.

As far as Justice Brewer was concerned, using the interpretative principle from Cardozo’s

method of justice and sociology which permitted the avoidance of what to his mind was

an absurdity was more important than sticking with Cardozo’s method of philosophy

which brought about that absurdity. In other words, even though Cardozo might give the

method of philosophy the presumption, the method of justice overcame the presumption

with sufficient force. Justice Brewer believed that the text “should be so limited in their

application as not to lead to injustice, oppression or an absurd consequence.”382

Moreover, using Cardozo’s method of sociology, Justice Brewer stated, “Again,

another guide to the meaning of a statute is found in the evil which it is designed to

remedy; and for this the court properly looks at contemporaneous events, the situation as

it existed, and as it was pressed upon the attention of the legislative body.”383

Justice

Cardozo would — I think — approve of Justice Brewer’s approach. After all, Cardozo

said that, “Every new case is an experiment; and if the accepted [substantive or

interpretative] rule which seems applicable yields a result which is felt to be unjust, the

381 United States v. Kirby, 74 U.S. 482, 486-487 (U.S. 1868) 382 Church of the Holy Trinity, 461. 383 Church of the Holy Trinity, 463.

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rule is reconsidered.”384

Cardozo would start with the precedents but avoid unfortunate

decisions that result from pushing them to the limit of their logic. Instead, one should, as

he stated proceed “along the line of logical progression,” using his methods before

settling on any one principle; or as Justice Cardozo put it, “the constant checking and

testing [the method of] philosophy by [the method of justice], and of justice by

philosophy.”385

Justice Scalia would certainly take issue with Justice Cardozo on this last point.

As he said of the relation of the facts to the statute, “Well of course I think the act was

within the letter of the statute, and was, therefore within the statute: end of case.”386

Justice Cardozo would in turn respond

the work of deciding cases in accordance with precedents that plainly fit them is

a process similar in its nature to that of deciding cases in accordance with a statute. It is a process of search, comparison, and little more. Some judges

seldom get beyond that process in any case. Their notion of their duty is to match

the colors of the case at hand against the colors of many sample cases spread out upon their desk. The sample nearest in shade supplies the applicable rule. But, of

course, no system of living law can be evolved by such a process, and no judge

of a high court, worthy of his office, views the function of his place so narrowly.

If that were all there was to our calling, there would be little of intellectual interest about it.

387

To which Justice Scalia would end by saying that one of the most important generally

accepted rules of textual construction is “the rule that when the test of a statute is clear,

that is the end of the matter. . . . Government by unexpressed intent is . . . tyrannical. It

384 Cardozo, Judicial Process, 22. 385

Cardozo, Judicial Process, 43. 386 Scalia, Interpretation, 20. 387

Cardozo, Judicial Process, 19-20. Judge Jerome Frank put it more brusquely—[T]he demolition of the

purposes of Congress, through stingy statutory interpretation, is the most emphatic kind of judicial

legislation. Judge Jerome Frank, dissenting in M. Witmark & Sons v. Fred Fisher Music Co., 125 F.2d 949,

967-968 (2nd Cir. 1942).

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is the law that governs, not the intent of the lawgiver [or judge].”388

[Emphasis is in the

original.]

The Bi-directional and Dialectic Nature of Meaning

Just as outside conditions influences our understanding of a text, the text

influences our understanding of those outside conditions. In other words, the relationship

between a text and outside conditions is dialectical. As outside conditions help create our

understanding of a text, the text simultaneously helps create our understanding of the

outside conditions.

Just as Cardozo suggests that outside conditions can determine the meaning of

texts (statutory or precedential), so can the meaning of a text affect our understanding of

outside conditions. Take for example, the well-known statement by the rebel Dick the

Butcher in Shakespeare’s Henry VI, “The first thing we do, let’s kill all the lawyers.”389

In terms of the plain meaning of the words, the interpretative process is not too difficult.

If we take the text at face value, all the lawyers will be killed, the country, along with

every relation that those lawyers had, will be without the lawyers. Nevertheless, the

question of what would that mean for the country and the people directly affected

persists. In short, the inquiry focuses on how the interpretation of that text affect outside

conditions.

388 Scalia, Interpretation, 16-17. Judge Hand, who gives primacy to the text, does so as a means to

determine legislative intent. “no doubt the most important single factor in ascertaining its intent is the

words it employs. But the colloquial words of a statute have not the fixed and artificial content of scientific

symbols; they have a penumbra, a dimfringe, a connotation, for they express an attitude of will, into which

it is our duty to penetrate and which we must enforce ungrudgingly when we can ascertain it, regardless of imprecision in its expression.” Judge Hand, dissenting in Commissioner v. Ickelheimer, 132 F.2d 660, 662

(2nd Cir. 1943) 389 Part II, 4.2.78. Dick was part of a rebellious mob led by Jack Cade, a protégé of the Duke of York that

sought to overthrow the existing reign of Henry VI (to be no doubt replaced by the House of York).

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One interpretation might be that killing all the lawyers is a means to creating an

authoritarian régime. We might well envision the débacle that came upon the Romanian

bar with the ascension of the Soviets following World War II. According to Calin Andrei

Zamfirescu, president of the Romanian Bar Association, there were 37,000 lawyers in

Romania in 1947. Following disbarments, deportations, imprisonments and other actions

by the Communist régime, the number had fallen to a mere 2,000.390

Justice John Paul

Stevens agrees with this interpretation and the implications for it in the outside world.

Justice Stevens, wrote that in a “dispute with the sovereign. . . the citizen’s right of access

to the independent, private bar is itself an aspect of liberty that is of critical importance in

our democracy. . . . I reject the majority’s apparent unawareness of the function of the

independent lawyers as a guardian of our freedom.” Justice Stevens went on to say,

That function was, however, well understood by Jack Cade and his followers,

characters who are often forgotten and whose most famous line is often misunderstood. Dick's statement (“The first thing we do, let’s kill all the lawyers”)

was spoken by a rebel, not a friend of liberty. As a careful reading of that text will

reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government. (Emphasis added.)

391

As a matter of fact, a “careful reading of the text will yield no such understanding

of Dick’s statement. It will simply reveal that Dick exhorted the members of his group to

“kill all the lawyers.” In point of fact, a contrary interpretation can be derived from the

text, given a particular view of the situation in which they were embedded. As has been

pointed out, “on its face, the passage [to some] has an obvious antilawyer animus,

making the line a shopworn favorite of newspapers editorial writers, iconoclastic bar

390 Frels, Kelly. “The State Bar Helps Teach Democracy in Romania.” 67 Tex. Bar J., No. 8, 644 (Sept. 2004). To be sure, the “rule of law” preceding the Sovietization of Romania was that of authoritarian

rulers, the point is still to be made that no doubt the Communists believed that attorneys can be a particular

thorn in the side of such regimes. 391 Walters, Adm. of Veterans’ Affairs v. National Assn. of Radiation Survivors, 473 U.S. 305, 371 (1985).

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association speakers, and indeed any critic of the legal profession who wants to seem

learned by invoking an apparently apt, if trite, line from an impeachable source.”392

These anti-lawyers types would include Marlin Fitzwater, President George H. W. Bush’s

press secretary who at a press conference asserted that “Lawyers certainly deserve all the

criticism they can get.” When asked if his remarks reflected the President’s sentiments,

Fitzwater replied, “Those are universally held feelings by everyone who has ever dealt

with the legal establishment. Everyone ought to take every opportunity to blast lawyers,

It’s so easy to bash lawyers.”393

Two years later during his acceptance at the Republican

National Convention, President George H.W. Bush weighed in by stating, “I see

something happening in our towns and in our neighborhoods. Sharp lawyers are running

wild. Doctors are afraid to practice medicine, and some moms and pops won't even

coach Little League any more. We must sue each other less and care for each other more.

I am fighting to reform our legal system, to put an end to crazy lawsuits. If that means

climbing into the ring with the trial lawyers, well, let me just say, round one starts

tonight.”394

President George W. Bush declared that “Doctors practice defensive

medicine because of all the frivolous lawsuits that cost our government $28 billion a

year.”395

Mr. Bush not only made the charge against lawyers a staple of his stump

speeches during the 2004 presidential campaign,396

he followed up with the charge in his

2005 State of the Union Address, stating that “Small business is the path of advancement,

392 Kornstein, Daniel J. Kill All the Lawyers: Shakespeare’s Legal Appeal. (Princeton: Princeton

University Press, 1994), 24. 393 The New York Times, In “Fitzwater v. Lawyers,” February 24, 1990. 394

George H. W. Bush Speeches, Republican National Convention (August 20, 1992). Miller Center of

Public Affairs, University of Virginia, Scripps Library and Multimedia Archive. http://millercenter.virginia.edu/scripps/, accessed 11/4/2007 4:36 P.M. 395 The New York Times, In “Transcript of the presidential debate,” October 8, 2004. 396 Stevenson, Richard W. and David E. Sanger, ‘Stump Speech Retooled, Bush Goes on Attack,” October

7, 2004.

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especially for women and minorities, so we must free small businesses from needless

regulation and protect honest job-creators from junk lawsuits. (Applause.) Justice is

distorted, and our economy is held back by irresponsible class-actions and frivolous

asbestos claims -- and I urge Congress to pass legal reforms this year. (Applause.)”397

Thus, we have, on the one hand, the position that the meaning of Dick’s

declaration is that lawyers are an impediment to authoritarian régimes, and, on the other,

that they are impediments to a functioning capitalist-based economy. There is yet a third

possibility — lawyers are the impediment to populist reform, “the very symbol of the

inequities and oppression that provoke revolution” by the populace. They are, in short,

seen as “conservative defenders of property and the status quo, as unethical ‘hired guns’

or ‘mouthpieces’ available to the highest bidder, as a professional élite of technical

wizards adept at using the law to cheat honest but poor people.”398

This point of view

can be arrived at by examining other passages in the play and the historical condition

surrounding the time of Henry VI’s reign as well as Shakespeare’s.399

Kornstein quotes

Harold Laski, notable British political scientist and friend of Justice Holmes, as saying,

“while law is supposed to be a device to serve society, a civilized way of helping the

wheels go round without too much friction, it is pretty hard to find a group less concerned

with serving society and more concerned with serving themselves [by serving the

interests of their rich clients] than the lawyers.”400

397

The White House, “State of the Union Address,” news release, February 2, 2005. 398 Kornstein, Kill All the Lawyers, 26. 399 For example, Cade tells his lower-class followers—peasants, laboring men and handicraftsmen such as

clothiers, butchers, weavers and tanners—that their fight was a struggle to regain their “ancient freedom”

and escape “live[ing] in slavery to the nobility.” 400 Kornstein, Kill All the Lawyers, 27.

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As Kornstein points out, a more recent event in United States history illustrates

this last interpretation of Cade’s rebellion—that is Shay’s Rebellion of 1786 in Western

Massachusetts where “farmers, facing a horrendous economy replete with foreclosures

looked ‘with disgust and aversion’ at the lawyers’ ‘great appearance of wealth by their

splendid tables, rich furniture’ and ‘blamed them for the ruin of many good worthy

families.’” a local legislator reported that “lawyers had, almost universally, been

represented as the pest of society.” who were in league with “Eastern” creditors.”” 401

We will see by a further examination of Cardozo’s “methods” that the outside

conditions are to him extremely important to reaching a reliable and useful interpretation

of a text. Of the method of history, he says that “The point is rather that the conceptions

[i.e., legal principles] themselves have come to us from without and not from within, that

they embody the thought, not so much of the present as of the past, that separated from

the past their form and meaning are unintelligible and arbitrary, and hence that their

development, in order to be truly logical, must be mindful of their origins.”402

Comparing the method of history with the method of philosophy, Cardozo furnishes one

of Justice Holmes’ witty jewels: “a page of history is worth a volume of logic.”403

Justice Cardozo wrote that the “misuse of logic or philosophy begins when its

method and its end are treated as supreme and final,” and the “tendency of a principle to

expand itself to the limit of its logic may be counteracted by the tendency to confine itself

401 Szatmary, David. Shay’s Rebellion, (Amherst: University of Massachusetts Press, 1980), 42, quoted in

Kornstein, Kill All the Lawyers, 27. As I write, (November 5, 2007) lawyers in Pakistan are being beaten

and arrested (150 alone in the city of Lahore) by police as the lawyers protest the recent imposition of

emergency rule—no doubt a euphemism for martial law—by the Pakistani President General Pervez

Musharraf. The seven justices of the Supreme Court have been placed under house arrest after they ruled the emergency order illegal, and the Chief Justice, Chief Justice, Iftikhar Muhammad Chaudhry, has been

dismissed for the second time this year. 402 Cardozo, Judicial Process, 54. 403 N. Y. Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)

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within the limits of its history.”404

Circuit City, Inc. v. Adams, illustrates how these two

forces might operate together by showing how a text that meant one thing in 1925 meant

something different seventy five years later.405

In Southland, the Supreme Court

federalized arbitration law by holding that the Federal Arbitration Act of 1925 [FAA]

preempts any conflicting state law that sought to restrain the availability of arbitration in

many situations where the states wanted to preserve the right to have disputes resolved by

the judicial process. For example in Southland, the California Franchise Investment Law,

required judicial consideration of claims brought under it. The United States Supreme

Court ruled that the FAA was applicable to the states and thus precluded enforcement of

the Franchise Investment Law as to arbitration. Since then, the Court has extended the

FAA to cover agreements to arbitrate in situations involving substantive claims under

laws creating judicial relief.406

Since Southland, arbitration clauses have become ubiquitous, especially in

consumer and employment situations in what one commentator has called the

“consumerization” of arbitration, “A veritable surrogate for the public justice system, it

touches the lives of many persons who, because of their status as investors, employees,

franchisees, consumers of medical care, homeowners, and signatories to standardized

contracts, are bound to private processes traditionally employed by commercial

parties.”407

[Decide if you want to embark on the meaning of “commerce.”]

404 Cardozo, Judicial Process, 465 54. 405

532 U.S. 105 (2001) 406 For example, the Court has permitted arbitration of anti-trust claims Sherman Anti-trust Act of 1890 (Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985)) and age discrimination claims

under the Age Discrimination in Employment Act of 1967 (Gilmer v. Interstate/Johnson Lane Corp., 500

U.S. 20 (1991)). 407 Stipanowich, Thomas J., 92 Nw. U.L. Rev. 1, 3l

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As for the directive force along the line of the customs of the community—the

method of tradition, Cardozo stated that custom is not used to create substantive law as it

was earlier at common law. As Justice Cardozo put it, “It is, however, not so much in the

making of new rules as in the application of old ones that the creative energy of custom

most often manifests itself today.”408

For example, in a situation where a decision-maker

must if an attorney entered into an unreasonable fee arrangement with a client thus

violating a rule of ethics. The decision-maker would look to, among other things, the

custom of the profession.409

Cardozo gives the three methods covered so far—philosophy, history and

custom—their due, but goes on to say:

Some concepts of the law have been in a peculiar sense historical growths. In

such departments, history will tend to give direction to development. In other departments, certain large and fundamental concepts, which comparative

jurisprudence shows to be common to other highly developed systems, loom up

above all others. In these we shall give a larger scope to logic and symmetry. A broad field there also is in which rules may, with approximately the same

convenience, be settled one way Or the other. Here custom tends to assert itself

as the controlling force in guiding the choice of paths.410

Yet, he concludes: “Finally, when the social needs demand one settlement rather than

another, there are times when we must bend symmetry, ignore history and sacrifice

custom in the pursuit of other and larger ends.”411

Of this final and fourth method,

Cardozo characterizes as the most important one of his day, namely, “social justice.”

408 Cardozo, Judicial Process, 61. 409

In fact, the ABA’s Model Rules of Professional Conduct Rule 1.5(a) that provides: (a) A lawyer shall

not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses, lists eight factors involving the customary practice in the profession that determines what is and is not a

reasonable fee, including “the fee customarily charged in the locality for similar legal services.” 410 Cardozo, Judicial Process, 64. 411 Cardozo, Judicial Process, 64.

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“The final cause of law is the welfare of society. . . . The end which the law serves will

dominate. . . .”412

Another of what Cardozo calls “one of [Holmes’] flashing epigrams: “I recognize

without hesitation that judges must and do legislate, but they do so only interstitially;

they are confined from molar to molecular motions,” followed by a quote from Géza Kiss

regarding statutory interpretation, the “general framework furnished by the statute is to be

filled in for each case by means of interpretation, that is, by following out the principles

of the statute. In every case, without exception, it is the business of the court to supply

what the statute omits, but always by means of an interpretative function.”413

Regarding the gaps in legal texts, Cardozo believed that “where statutes are

oftener confined to the announcement of general principles, and there is no attempt to

deal with details or particulars, legislation has less tendency to limit the freedom of the

judge. That is why in our own law there is often greater freedom of choice in the

construction of constitutions than in that of ordinary statutes. Constitutions are more

likely to enunciate general principles, which must be worked out and applied thereafter to

particular conditions.”414

Justice Stephen Breyer would be please at reading (or no doubt

re-reading) these comments by Justice Cardozo. Justice Breyer, promoting what amounts

to a version of the method of sociology, has written, “Courts should take greater account

412 Cardozo, Judicial Process, 65. 413 Cardozo, Judicial Process, 69. The Holmes quote comes from S. Pac. Co. v. Jensen, 244 U.S. 205, 221

(U.S. 1917). The latter quotation is from Kiss, Géza, “Equity and Law,” in “Science of Legal Method,”

(Brookline, MA: The Riverdale Press, 1917), 9 Modern Legal Philosophy Series, 161. 414 Cardozo, Judicial Process, 70.

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of the Constitution’s democratic nature when they interpret constitutional and statutory

texts.”415

Yet, at this point, Cardozo is more interested in how to fill the gaps through

interpretation rather than whether they are constitutional or statutory size. He points out

the fact that the Constitution does not define the individual’s liberty interest, nor does it

set any boundaries. Notwithstanding the textual silence, Cardozo sees liberty as a viable

living organism. Noting that “liberty was conceived of at first as something static and

absolute, he describes the evolution of “liberty” from the formalistic, static-ridden

attitude that the term embodied the notions of laissez faire to the general attitude that Due

Process does not embody any particular economic theory. “Courts know today that

statutes are to be viewed, not in isolation or in vacua, as pronouncements of abstract

principles for the guidance of an ideal community, but in the setting and the framework

of present-day conditions, as revealed by the labors of economists and students of the

social sciences in our own country and abroad The same fluid and dynamic conception

which underlies the modern notion of liberty, as secured to the individual by the

constitutional immunity, must also underlie the cognate notion of equality.”416

In like

manner, Justice Breyer went on to say that his thesis “finds in the Constitution’s

democratic objective. . . a source of judicial authority and an interpretative aid to more

effective protection of ancient and modern liberty alike.”417

415 Breyer, Stephen, Active Liberty: Interpreting our Democratic Constitution. (New York: Alfred A,.

Knof, 2005), 5. (6) 416 Cardozo, Judicial Process, 80-81. 417 Breyer, Active Liberty, 6.

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Just as Justice Breyer would agree with Justice Cardozo’s position that the

“content of constitutional immunities is not constant, but varies from age to age,”418

Justice Scalia would take umbrage. As he [Scalia] put it in a speech to an audience at the

University of Chicago in 2002: “The Constitution that I interpret and apply is not living

but dead, or-as I prefer to call it-enduring," Scalia said. "It means today not what current

society and much less the Court thinks it ought to mean, but what it meant when it was

adopted.”419

Justice Cardozo would respond, while “Statutes are designed to meet the

fugitive exigencies of the hour. A constitution states or ought to state not rules for the

passing hour, but principles for an expanding future.”420

Justice Cardozo does not claim that individual judges should only consult their

individual, subjective consciences when interpreting a text. He explicitly stated, “That

does not mean that in judging the validity of statutes they are free to substitute their own

ideas of reason and justice for those of the men and women whom they serve. Their

standard must be an objective one. In such matters, the thing that counts is not what I

believe to be right. It is what I may reasonably believe that some other man of normal

intellect and conscience might reasonably look upon as right.”421

Using another Holmes

quote, Cardozo indicated his adamant opposition to the Constitution becoming the

“partisan of a particular set of ethical or economical opinions, which by no means are

418

Cardozo, Judicial Process, 81-82. 419 Justice Scalia’s remarks at a conference “A Call for Reckoning: Religion & the Death Penalty,” January 25, 2002, reported by The University of Chicago Magazine, Vol. 94, No. 4 (April 2002),

http://magazine.uchicago.edu/0204/campus-news/journal-playing.html, accessed March 30, 2005. 420 Cardozo, Judicial Process, 82. 421 Cardozo, Judicial Process, 87-88.

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held semper ubique et ab omnibus (what has been believed always, everywhere and by

all.).”422

Cardozo does not provide a recipe for knowing which of the four methods trumps

others in a given situation or what kind of mix to make of then in any one case. “I can

only answer that he must get his knowledge just as the legislator gets it, from experience

and study and reflection; in brief, from life itself.”423

More specifically, but still very

abstractly, Cardozo mentions following the tradition of the centuries, the example of

other judges and colleagues. As probably most important of all, he points to the

“pervading spirit of the law.” In this current day and age, when dissenting opinions are

becoming so numerous and acerbic, it is doubtful if a “pervading spirit of the law” will

work.

422 Cardozo, Judicial Process, 89, quotation is from Otis v. Parker, 187 U.S. 606, 608 (U.S. 1903). 423 Cardozo, Judicial Process, 112.

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Learned Hand

Billings Learned Hand (1872-1961) was known as the “Tenth Justice of the

Supreme Court,” for two very good reasons. Although Hand did not serve on the

Supreme Court, he served for decades as one of the nation’s most esteemed and

influential judges. Justice Holmes placed Hand with Cardozo as the two judges he most

wanted to see ascend to the ‘Supreme Court. For Justice Frankfurter, Hand “belongs to

that very select company of judges in whom one does not find greatness in order to

justify merely personal preference.”424

Following twelve years at the bar in New York

and fifteen years as a member of the United States District Court for Southern New York,

Judge Hand served twenty seven years on the Second Circuit Court of Appeals in New

York City—twelve as chief judge—that made as many decisions in one year as the

Supreme Court did in six. Small wonder than that the Second Circuit was for all practical

purposed the court of last resort for most of the important cases in the nation.425

According to one of Judge Hand’s more notable law clerks, Archibald Cox, the

judge sought to determine the intent of Congress in situations of uncertain language

because “society will not long tolerate the wisest judge who knowing no master, decides

cases only according to his individual sense of justice.” 426

Hand refused to be drawn into

either end of the dichotomous either/or of interpretation where a judge would either “look

to his own conscience and follow its dictates,” or “observe very strictly what they

424

Frankfurter, Felix. “Judge Learned Hand.” Harvard Law Review, Vol. 60, No. 3 (February, 1947) 329. 425 Judge Hand wrote nearly 2000 cases himself. Hand, Learned. The Spirit of Liberty. Irving Dillard, ed. (New York: Alfred Knopf, 1974) xviii. The cases that came before the Second Circuit covered everything

from administrative law to trademark law, from securities law to anti-trust law. 426 Cox, Archibald. “Judge Learned Hand and the Interpretation of Statutes.” Harvard Law Review, Vol.

60, No. 3 (February, 1947) 373.

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consider the law, reading it as though it were all to be found in written words, and never

departing from the literal meaning.”427

With that said, Hand, viewing law as the written command of a governing process

and judges as the means of saying what the law means, goes on to say that “on the one

hand, [a judge] cannot go beyond what has been said [by the legislature], because he is

bound to enforce existing commands and only those; on the other, he cannot suppose that

what has been said should clearly frustrate or leave unexecuted its own purpose.”428

After all, “All [the legislators] have done is to write down certain words which they mean

to apply generally to situations of [a] kind.” Moreover, “to apply these literally may

either pervert what was plainly their general meaning, or leave undisposed of what there

is every reason to suppose they meant to provide for.”429

Although Judge Hand rejected the “dictionary school” of interpretation, he

nevertheless believed that the opposite school granted judges too much leeway. To be

427 Hand, Learned. “How Far is a Judge Free in Rendering a Decision?” Law Series I (National Advisory

Council on Radio in Education, 1933), reprinted in The Spirit Of Liberty: Papers and Addresses of Learned

Hand. Irving Dillard, ed. (New York: Alfred A. Knopf, 1974), 103. Regarding these two extremes, Judge

Hand, commenting that neither school of though is willing to “apply its theory consistently, usually

applying it when its interests lie along the path it advocated,” might agree with Judge Posner, who wrote

“Almost a quarter century as a federal appellate judge has convinced me that it is rarely possible to say with

a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly When one uses terms like ‘correct’ and ‘incorrect’ in this context, all one can actually mean is that one likes

(approves of, agrees with, or is comfortable with) the decision in question or dislikes (disapproves of,

disagrees with, or is uncomfortable with) it.” Posner, Richard A. “Foreword: A Political Court.” Harvard

Law Review, Vol. 119, No. 1 (November 2005) 31, 40. 428 Hand, “How Far is a Judge Free,” 106-107. In like measure, Hand wrote, “There is no surer way to

misread any document than to read it literally; in every interpretation we must pass between Scylla and

Charybdis; and I certainly do not wish to add to the barrels of ink that have been spent in logging the route.

As nearly as we can, we must put ourselves in the place of those who uttered the words, and try to divine

how they would have dealt with the unforeseen situation; and, although their words are by far the most

decisive evidence of what they would have done, they are by no means final.” Hand concurring in

Guiseppi v. Walling, 144 F.2d 608, 624 (2nd Cir. 1944). This sentiment, of course, runs counter to the

position of Justice Scalia whom Hand would classify as a member of the “dictionary school.” Scalia, referring to Church of the Holy Trinity v. United States, stated, “I think the act [of the church and rector]

were within the letter of the statute, and was therefore within the statute: end of case.” Scalia, A Matter of

Interpretation, 20. 429 Hand, “How Far is a Judge Free,” 106.

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sure, Hand acknowledged that a judge has to often decide what a legislature would do in

an unforeseen situation, but “let him beware, however, or he will usurp the office of

government, even though in a small way he must do so in order to execute its real

commands at all”430

Hand’s escape from the dilemma is to be found in the following dictum:

The judge must always remember that he should go no further than he is

sure the government would have gone, had it been faced with the case before him. If he is in doubt, he must stop, for he cannot tell that the conflicting

interests in society for which he speaks would have come to a just result, even

though he is sure that he knows what the just result should be. He is not to substitute even his juster will for theirs; otherwise it would not be the common

will which prevails, and to that extent the people would not govern.431

Hand’s opinion written as a member of a panel of the Second Circuit Court of

Appeals while still a district judge illustrates his attitude toward viewing a statutory text

in its wider context. The case involved a state statute that created a duty for employers to

furnish a safe place to their employees to do their work. The defendant resisted liability

for the injured plaintiff, claiming that the plaintiff was not an employee. The defendant’s

claim was based on the fact that it made individual contracts with the miners in its mine

who dug coal and then “sold” it to the company. Judge Hand broke with the tradition of

looking at the formal meaning of words wrote,

This misses the whole purpose of such statutes, which are meant to protect those who are at an economic disadvantage. It is true that the statute uses

the word “employed,” but it must be understood with reference to the purpose of

the act, and where all the conditions of the relation require protection, protection ought to be given. It is absurd to class such a miner as an independent contractor

in the only sense in which that phrase is here relevant. He has no capital, no

financial responsibility . . . . By him alone is carried on the company's only business; he is their “hand,” if any one is. Because of the method of his pay one

should not class him as though he came to do an adjunctive work, not the

business of the company, some-thing whose conduct and management they had

not undertaken. Such statutes . . . should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them.

432

430 Hand, “How Far is a Judge Free,” 108. 431 Hand, “How Far is a Judge Free,” 109. 432 Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 552-553 (2nd Cir. 1914)

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Rejecting the dominant conservative attitude of the day that demanded literalism,

Judge Hand asserted,

Compunctions about judicial legislation are right enough as long as we

have any genuine doubt as to the breadth of the legislature's intent; and no doubt the most important single factor in ascertaining its intent is the words it employs.

But the colloquial words of a statute have not the fixed and artifical content of

scientific symbols; they have a penumbra, a dim fringe, a connotation, for they express an attitude of will, into which it is our duty to penetrate and which we

must enforce when we can ascertain it, regardless of imprecision in its

expression.433

A good example of Judge Hand rejecting the literal language in favor of the

statute’s overall purpose is a case involving the Internal Revenue Code. In this case, the

taxpayer owned all the shares of what we will refer to as corporation number one.

Among the assets of corporation number one was shares in corporation number two. It

became possible to sell the shares of number two at a handsome profit; but if done so

directly, there would have been a large tax bill. As a result of the impending tax, the

taxpayer first created corporation number three then, second, transferred the shares of

stock in number one to number three, then, third, wound up corporation number three,

taking the stock [from number two] as a liquidating dividend that resulted in considerably

less taxes than a direct sale of the same stock.

The taxpayer’s tax return was made on the theory that the transfer of corporation

one shares to corporation number three was a “reorganization” under the tax code as “a

transfer by a corporation of . . . a part of its assets to another corporation” in such

circumstances that immediately thereafter “the transferor or its stockholders or both are in

433 Commissioner v. Ickelheimer, 132 F.2d 660, 662 (2nd Cir. 1943), Judge Hand dissenting.

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control of the corporation to which the assets are transferred.”434

Judge Hand, refusing to

go along with the taxpayer’s theory, stated that “it does not follow that Congress meant to

cover such a transaction, not even though the facts answer the dictionary definitions of

each term used in the statutory definition. . . . the meaning of a sentence may be [*811]

more than that of the separate words, as a melody is more than the notes, and no degree

of particularity can ever obviate recourse to the setting in which all appear, and which all

collectively create.”435

Hand the upper hand to the statute’s overall purpose, which was

that “the underlying presupposition is plain that the readjustment shall be undertaken for

reasons germane to the conduct of the venture in hand, not as an ephemeral incident,

egregious to its prosecution. To dodge the shareholders' taxes is not one of the

transactions contemplated as corporate ‘reorganizations.’”436

Thus, even though the

literal language of the statue was satisfied, the overall purpose was not and the so-called

“reorganization” failed as such.

Judge Hand was not reluctant in the least to appeal to legislative intent. Indeed,

he was willing to utilize the testimony of witnesses who appeared before a congressional

committee. On one case involving the issue of whether the Securities and Exchange

Commission,437

, may appear in the District Court by its own solicitor and file a bill under

section 20 (b) of the Securities Act (15 U.S.C. § 77t, subd. (b), or whether it must appear

by the Attorney General, or a district attorney. The statute contained two clauses—one

that authorized the commission to go to court directly on it own and another one that

434 Section 112 (i) (1) (B) of the Revenue Act of 1928 (26 U.S.C. § 2112 (i) (1) (B)). 435 Helvering v. Gregory, 69 F.2d 809, 810 (2nd Cir. 1934). 436 69 F.2d 809, 810. 437 Created under section 4 (a) of title 1 of the "Securities Exchange Act of 1934," section 78d, tit. 15, U.S.

Code, 15 U.S.C. § 78d.

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directed the commission to send its file to the Attorney General who would prosecute the

case.438

The Commission insisted that the two clauses could not be reconciled without

resort to the amendments offered and acted upon in the legislative committee. When the

section was first introduced, there was no question but that the Commission was required

by the second clause to rely on the Attorney General’s discretion to sue, which was the

ancient custom. Nonetheless, Hand, agreeing with the Commission, opined, “[T]he

change in the section on its way through Congress makes the intent entirely plain.”439

Investigation of legislative history revealed that the first clause was added following the

testimony of the Commission’s general counsel. As Hand put it, “it was at his suggestion

that the change was made and that it was intended to allow the Commission complete

autonomy in civil prosecutions.”

The Court was urged to discard the testimony of a witness before a committee of

Congress, as it would not be as relevant as a speech on the floor of Congress. Judge

Hand acknowledged as much when he opined, “It would indeed be absurd [**6] to

suppose that the testimony of a witness by itself could be used to interpret an act of

Congress.” Yet, he went on to say, “we are not so using it. The bill was changed in a

most significant way; we are concerned to learn why this was done; we find that it can

438 15 U.S.C. § 77t, subd. (b) provided, Action for injunction or criminal prosecution in district court.

Whenever it shall appear to the Commission that any person is engaged or about to engage in any acts or

practices which constitute or will constitute a violation of the provisions of this title [15 U.S.C. §§ 77a et

seq.], or of any rule or regulation prescribed under authority thereof, the Commission may, in its discretion,

bring an action in any district court of the United States, or United States court of any Territory, to enjoin

such acts or practices, and upon a proper showing, a permanent or temporary injunction or restraining order

shall be granted without bond. The Commission may transmit such evidence as may be available

concerning such acts or practices to the Attorney General who may, in his discretion, institute the necessary criminal proceedings under this title [15 U.S.C. §§ 77a et seq.]. Any such criminal proceeding may be

brought either in the district wherein the transmittal of the prospectus or security complained of begins, or

in the district wherein such prospectus or security is received.” 439 SEC v. Robert Collier & Co., 76 F.2d 939 (2nd Cir. 1935).

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most readily be explained, and indeed cannot naturally be explained on any other

assumption than by supposing that the committees assented to a request from the very

agency to whom the new functions were to be committed. To close our eyes to this patent

and compelling argument would be the last measure of arid formalism. The amendments

of a bill in committee are fertile sources of interpretation.”440

A realist, Judge Hand recognized that “it is of course true that members who vote

upon a bill do not all know, probably very few of them know, what has taken place in

committee. On the most rigid theory possibly we ought to assume that they accept the

words just as the words read, without any background of amendment or other evidence as

to their meaning. But courts have come to treat the facts more really; they recognize that

while members deliberately express their personal position upon the general purposes of

the legislation, as to the details of its articulation they accept the work of the committees;

so much they delegate because legislation could not go on in any other way.”441

In the final analysis, Judge Hand not only rejected textual literalism, he sought the

general intent or overall purpose of the legislation as a guide to a determination of the

text’s meaning.442

After all, it is only when the text simpliciter cannot provide the answer

by itself that judges are compelled to look at the text in its total environment. As the

judge put it, “We can best reach the meaning here, as always, by recourse to the

underlying purpose, and, with that as a guide, by trying to project upon the specific

440 76 F.2d 939, 941. 441 76 F.2d 939, 941. 442

Moreover, Judge Hand did not hold the canons of construction too highly. “The canon which the

taxpayer invokes is sometimes a help, but we must never ignore the more important, though impalpable, factors. Indeed, nothing is so likely to lead us astray as an abject reliance upon canons of any sort; so much

the whole history of verbal interpretation teaches, if it teaches anything. At times one is more likely to

reach the truth by an unanalyzed and intuitive conclusion from the text as a whole, than by following, step

by step, the accredited guides.” Van Vranken v. Helvering, 115 F.2d 709, 711 (2nd Cir. 1940).

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occasion how we think persons, actuated by such a purpose, would have dealt with it, if it

had been presented to them at the time. To say that that is a hazardous process is indeed

a truism, but we cannot escape it, once we abandon literal interpretation - a method far

more unreliable.”443

One aspect of the interpretive process that Judge Hand pointed out

was the fact that while the theories and the interpretive aids are there to guide a judge’s

decision, it is the judge’s interpretation. Judge Hand summed it up in this statement: “In

spite of the plenitude of discussion in recent years as to how far courts must defer to the

rulings of an administrative tribunal, it is doubtful whether in the end one can say more

than that there comes a point at which the courts must form their own conclusions.

Before doing so they will, of course, — like the administrative tribunals themselves —

look for light from every quarter, and after all crannies have been searched, will yield to

the administrative interpretation in all doubtful cases; but they can never abdicate.” 444

Regarding interpretative rulings by those officials charged with the duty to

administer a statute on behalf of a particular group, for example as an EEOC official

would in cases of employment discrimination, a Veterans Administration official would

in cases involving veterans, et cetera, Judge Hand wrote: “Whether the weight to be

given to such rulings is less than to regulations for the conduct of, or decision in,

contested cases, has never been expressly decided. . . . There is indeed a basis for making

such a distinction because the position of a public officer, charged with the enforcement

of a law, is different from one who must decide a dispute. If there is a fair doubt, his duty

is to present the case for the side which he represents, and leave decision to the court, or

the administrative tribunal, upon which lies the responsibility of decision. . . . Since

443 Borella v. Borden Co., 145 F.2d 63, 64-65 (2nd Cir. 1944). 444 Niagara Falls Power Co. v. Federal Power Com., 137 F.2nd 787, 792 (2d Cir. 1943).

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such rulings need not have the detachment of a judicial, or semi-judicial decision, and

may properly carry a bias, it would seem that they should not be as authoritative.”445

445 Fishgold v. Sullivan Drydock & Repair Corp., 154 F.2d 785, 789 (2 d Cir. 1946).

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Felix Frankfurter446

Justice Felix Frankfurter (1882-1965) served on the Supreme Court from 1939 to

1962 after completing a twenty-six-year tenure as a law professor at Harvard and before

that government service and private law practice.

Frankfurter, not unlike most everyone else, saw each text as a candidate for

interpretation due to two factors: “The intrinsic difficulties of language and the

emergence after enactment of situations not anticipated by the most gifted legislative

imagination, reveal doubts and ambiguities in statutes that compel judicial

construction.”447

He did not view the interpretative process as a purely deductive

process. While reasoning may be useful, he believed it was nonetheless inadequate. As

he put it, “To speak of [the interpretative process] as a practical problem is not to indulge

a fashion in words. It must be that, not something else.”448

Not only is it a practical

problem, but Frankfurter counseled us to view it from the beginning as a problem to be

solved, for “In matters of statutory construction also it makes a great deal of difference

whether you start with an answer or with a problem.”449

In response to the question of how to describe the interpretative task, Frankfurter,

acknowledging that everyone had their own way of describing the interpretative task,

stated, “I should say that the troublesome phase of construction is the determination of

446 Note the quote from Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 618 (U.S. 1944) “After

all, legislation when not expressed in technical terms is addressed to the common run of men and is

therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on

ordinary words addressed to him.” 447Justice Frankfurter delivered a lecture to the Association of the Bar of City of New York on March 18,

1947. The lecture, “Some Reflections on the Reading of Statutes,” was published in the Record of the

Association of the Bar of the City of New York for June 1947 (Vol. 2, p. 213) and in the May 1947 issue of the Columbia Law Review (Vol. 47, p. 527), page. 2. (Pagination is from the printed copy of Frankfurter’s

essay 448 Frankfurter, “Reflections,” 2. 449 Frankfurter, “Reflections,” 3.

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the extent to which extraneous documentation and external circumstances may be

allowed to infiltrate the text on the theory that they were part of it, written in ink

discernible to the judicial eye.”450

Following this short description, Frankfurter—at the

age sixty five with decades of experience working with statutes as bureaucrat, prosecutor,

professor and judge—confessed that he had no answers for his audience. Referring to the

interpretative process as an art that could be grasped only in the experience, he declared,

“I confess unashamedly that I do not get much nourishment from books on statutory

construction, and I say this after freshly reexamining them all, scores of them.”451

Frankfurter went to the “great masters—Holmes, Brandeis and Cardozo—to get a

sense of their practice of the art of interpretation.”452

The thing that impressed

Frankfurter most about these three judges was the fact that they understood statutes as the

“expressions of policy arising out of specific situations and addressed to the attainment of

particular ends.”453

The crux of interpretation lay in the fact that the “legislative ideas

which laws embody are both explicit and immanent,” so that the judge must discern

“what is below the surface of the words and yet fairly within them.”454

Although in many ways, Justice Frankfurter was a controversial figure, he

steadfastly adhered to an attitude of judicial restraint, respecting the democratic rôle of

elected officials—executive and legislative alike. He believed that judges “are confined

by the nature and scope of the judicial function in its particular exercise in the field of

interpretation. . . . imposed by the judicial function in our democratic society. . . . [T]he

450 Frankfurter, “Reflections,” 3. 451 Frankfurter, “Reflections,” 3. 452 Frankfurter, “Reflections,” 3. 453 Frankfurter, “Reflections,” 5. 454 Frankfurter, “Reflections,” 5.

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function in construing a statute is to ascertain the meaning of words used by the

legislature. To go beyond it is to usurp a power which our democracy has lodged in its

elected legislature. . . . A judge must not rewrite a statute, neither to enlarge nor to

contract it. Whatever temptations the statesmanship of policy making might wisely

suggest, construction must eschew interpolation and evisceration. He must not read in by

way of creation. He must not read out except to avoid patent nonsense or internal

contradiction.”455

With Justice Scalia, Justice Frankfurter believed that “An omission, at

the time of enactment, whether careless or calculated, cannot be judicially supplied

however much later wisdom may recommend the inclusion.”456

With Justice Cardozo, Justice Frankfurter insisted that interpretation begin with

the text, but was not always willing to end with the text. Yet, he praised Justice Holmes

for finding underlying purpose and policy in the text!457

Frankfurter, keeping one eye on

the text and using the other to examine different aspects of its setting and context,

approvingly rattled off several canons of construction. While “one is admonished to

listen attentively to what a statute says. . . . one must also listen attentively to what it does

not say.”458

“If a statute is written for ordinary folk, it would be arbitrary not to assume

that Congress intended its words to be read with the minds of ordinary men. If they are

addressed to specialists, they must be read by judges with the minds of the specialists.”459

455 Frankfurter, “Reflections,” 6. 456 Frankfurter, “Reflections,” 6-7. 457 When Holmes opined that “While no doubt the grammatical and logical scope of a proviso is confined

to the subject matter of the principal clause, we cannot forget that in practice no such limit is observed, and

when, as here, we are dealing with an addition made in new circumstances to a form of words adopted

many years before, the general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down,” [United States v. Whitridge, 197 U.S. 135, 143 (U.S. 1905)],

Frankfurter insisted that Holmes “found the policy in those words.” 458 Frankfurter, “Reflections,” 8. 459 Frankfurter, “Reflections,” 8.

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“Words in a constitution may carry different meanings from the same words in a

statute.”460

Quoting Justice Holmes, Frankfurter appears to approve of viewing the

Constitution as a living document, an organism.461

Regarding the ever-present concern with legislative intention,

Justice Frankfurter stated, “All these years I have avoided speaking of the

"legislative intent" and I shall continue to be on my guard against using

it.” He used the oft-quoted comments that Holmes made in a private letter

that was made available to Frankfurter.

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. Of course the phrase often is used to express a

conviction not exactly thought out-that you construe a particular clause or expression by considering the whole instrument and any dominant purposes that

it may express. In fact intention is a residuary clause intended to gather up

whatever other aids there may be to interpretation beside the particular words and

the dictionary.462

Justice Frankfurter went to some length to present the English view of the rôle of

legislative intention. Quoting Richard Burdon Haldane, Lord Haldane of Cloan (1856-

1928), English statesman, lawyer and philosopher, to the effect that “I do not think,

sitting as we do with the obligation to administer the principles of the law, that we have

the least right to look at what happened while the Bill was being, discussed in Committee

and before the Act was passed,” Frankfurter stated that the English rule was too simple,

that it ignored the fact that “enactments are, as it were, organisms which exist in their

environment.”463

He believed that “nothing that is logically relevant should be

460 Frankfurter, “Reflections,” 9. 461 The quote is from Missoouri v. Holland. “when we are dealing with words that also are a constituent

act, like the Constitution of the United States, we must realize that they have called into life a being the

development of which could not have been foreseen completely by the most gifted of its begetters. It was

enough for them to realize or to hope that they had created an organism; it has taken a century and has cost

their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years

ago.” 252 U.S. 416, 433 (U.S. 1920). 462 Frankfurter, “Reflections,” 10. 463 Frankfurter, “Reflections,” 12.

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excluded,” in discerning legislative purpose.464

Moreover, Frankfurter does not believe

that the English judges—or anyone else for that matter—can “escape placing the words

in the context of their minds, which after all are not automata applying legal logic but

repositories of all sorts of assumptions and impressions.”465

Frankfurter recognized the legislative efforts to supply aids in interpretation in the

form of “general definitions, special definitions, explicit recitals of policy, and even

directions of attitudes appropriate for judicial construction. Legislative reports were

increasingly drawn upon, statements by those in charge of legislation, reports of

investigating committees, recommendations of agencies entrusted with the enforcement

of laws, etc. etc.”466

Declaring that ‘there is no table of logarithms for statutory construction, [and

that]. . . . no item of evidence has a fixed or even average weight,” Frankfurter also

asserted that “nor can canons of construction save us from the anguish of judgment.”467

In fact, he goes so far to say that between the work of Samuel E. Thorne’s Discourse

expounding on canons in mid-sixteenth century and the mid-twentieth century edition of

Sutherland’s Statutory Construction, with its three volumes and more than 1500 pages,

not much new wisdom concerning the art of textual construction has been uncovered.

Anticipating Karl Llewellyn’s analysis of the conflicting nature of canons of

construction, Justice Frankfurter stated, “Difficulties emerge when canons compete in

464 Distinguishing between legislative intention and legislative purpose can be a tricky enterprise. Each

definition uses the other term to define itself. “Purpose” is defined as “the reason for which something

exists or is done, made, used, etc.,” and “an intended or desired result; end; aim; goal.” “Intention” is

defined as “an act or instance of determining mentally upon some action or result and “the end or object

intended; purpose.” Purpose and Intention. Dictionary.com. Dictionary.com Unabridged (v 1.1). Random House, Inc. http://dictionary.reference.com/browse/intention (accessed: November 30, 2007). 465 Frankfurter, “Reflections,” 13. 466 Frankfurter, “Reflections,” 13-14. 467 Frankfurter, “Reflections,” 14-15.

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soliciting judgment, because they conflict rather than converge Difficulties emerge when

canons compete in soliciting judgment, because they conflict rather than converge.” In

short, “For the demands of judgment underlying the art of interpretation, there is no vade-

mecum.”468

468 Frankfurter, “Reflections,” 15.

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Karl N. Llewellyn

Karl N. Llewellyn (1893-1962) a major figure law during the first half of the

twentieth century, has been called “leading legal realist, academic law reformer, and

Sales Law theorist.”469

After graduating from Yale Law School, Llewellyn wanted to

teach commercial law, which he immediately began to do. He also went to work for a

bank then a commercial law firm in New York because, as he said later, “the things I was

finding in the cases had very little indeed to do with what was going on in practice. . . .

[T]here was no hope [for teaching] unless I found out what was going on de facto in

practice.”470

Thus did Llewellyn become one of the leading Legal Realist of the century,

who stridently attacked the prevailing notion of legal formalism that held that judges

were controlled by legal rules embodied in authoritative texts and objective principles

deduced by reason where no positive law existed. Though formalism has persisted, its

hegemonic position was largely displaced during the first half of the twentieth century by

a “ perspective [that] shifted to one that saw the whole fabric of law a legal decision as

more chosen than given.” It is this Realist attitude that his writings exhibit.471

As

Llewellyn described the Realist attitude with the introductory part of an early essay,

Ferment is abroad in the law. The sphere of interest widens; men become

interested again in the life that swirls around things legal. Before rules, were facts; in the beginning was not a Word, but a Doing. Behind decisions stand

judges; judges are men; as men they have human backgrounds. Beyond rules,

again, lie effects: beyond decisions stand people whom rules and decisions

469 Alan Schwartz, “Karl Llewellyn and the Origins of Contract Theory” (April 30, 1996). Berkeley

Program in Law & Economics, Working Paper Series. Paper 147.

http://repositories.cdlib.org/blewp/art147. 470 In a letter to his biographer William Twining, quoted in Twining’s Karl Llewellyn and the Realist

Movement Norman: Oklahoma University Press, 1985), 101. 471 Llewellyn was a prolific writer. A selected bibliography of his works, spanning four centuries, fill six and one-half pages in Twining’s biography. He went on to teach for four decades at the universities of

Yale, Columbia, Harvard and Chicago law schools. One of Llewellyn’s most notable achievements was his

successful fifteen-year tenure as the Reporter for the monumental Uniform Commercial Code that was

completed in 1962.

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directly or indirectly touch. The field of Law reaches both forward and back from

the Substantive Law of school and doctrine. The sphere of interest is widening; so, too, is the scope of doubt.

472

As the introductory examination of the positions of Justices Breyer and Scalia

reveal, the ferment is still with us. With that said, we will examine a mid-century essay

by Llewellyn that squarely confronts one of the contentious issues of statutory

interpretation; and, that is the debate over the rôle of canons of constructions in judicial

decision-making, viz., are they useful “because they combine predictability and

legitimacy in statutory interpretation. . . [whereby] the lawyer can figure out what the

legislature intended a statute to mean, which in turn is a sure prediction of how a judge

will interpret it,” or are they “window dressing for decisions reached on other

grounds”?473

In his “Remarks on the Theory of Appellate Decisions and the Rules or Canons

about how Statutes are to be Construed,” Llewellyn hurled a broadside at the claim that

canons of construction create predictability by controlling judges’ subjectivity. Instead,

he argues that the real guide to textual interpretation is not canons of construction, but,

rather, something he calls “situation-sense.”474

He tells us that “Situation-sense will

serve well enough to indicate the type-facts in their context and at the same time in their

pressure for a satisfying working-result, coupled with whatever the judge or court brings

and adds to the evidence in the way of knowledge and experience and values to see with

and to judge with.”475

Without going into the details of Llewellyn’s “situation-sense,”

472

Llewellyn, Karl. “Some Realism about Realism.” Harv. L. Rev. Vol. 44, No. 8 (June, 1931), 1222. 473 Eskridge, William, Jr. Dynamic Statutory Interpretation. (Cambridge: Harvard University Press, 1994), 275. 474 Vand. L. Rev. Vol. 3 (1950) 395. 475 Llewellyn, Karl. The Common Law Tradition: Deciding Appeals. (Boston: Little, Brown and Company,

1960), 60.

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suffice it to say here that he describes two types of jurists—one willing and one unwilling

to forgo an undue reliance on the canons and apply “situation-sense.”

There is the man who loves creativeness, who can without loss of sleep combine

risk-taking with responsibility, who sees and feels institutions as things built and to be built to serve functions, and who sees the functions as vital and law as a

tool to be eternally reoriented to justice and to general welfare. There is the other

man who loves order, who finds risk uncomfortable and has seen so much irresponsible or unwise innovation that responsibility to him means caution, who

sees and feels institutions as the tested, slow-built ways which for all their faults

are man’s sole safeguard against relapse into barbarism, and who regards

reorientation of the law our polity as essentially committed to the legislature.476

Llewellyn’s attack on the canons rested on his claim that “there are two opposing

canons on al most every point.” Moreover, he went on to assert that “Plainly, to make

any canon take hold in a particular instance, the construction contended for must be sold,

essentially, by means other than the use of the canon: The good sense of the situation and

a simple construction of the available language to achieve that sense, by tenable means,

out of the statutory language.”477

[Emphasis is in the original.] Llewellyn appended a

list of twenty-eight canons with their supposedly opposite which he—or his research

assistant(s)—drew from a judicial opinion. For example, he begins with a canon that

provides “a statute cannot go beyond its text,” drawn from a 1921 West Virginia case,

and countered by one drawn from a 1918 U.S. District (D. Minn.) court opinion that

provides “to effect its purpose, a statute may be implemented beyond its terms.”

It probably no surprise to know that Justices Scalia and Beyer are at odds, not

only over the rôle of canons of constructions, but also over Llewellyn’s treatment of

them. Justice Scalia, who believes that the canons are “commonsensical,” confronts

Llewellyn head-on, pointing out that the difference between two seemingly contradictory

476 Llewellyn, “Remarks on the Theory of Appellate Decisions,” 397. 477 Llewellyn, “Remarks on the Theory of Appellate Decisions,” 401.

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canons is not so much a contradiction as it is “simply one indication of meaning; and if

there are more contrary indications (perhaps supported by other canons), it must yield.”478

[Emphasis is in the original.] For example, Justice Scalia’s reaction to Llewellyn’s No.

13, “Words and phrases which have received judicial construction before enactment are

to be understood according to that construction. Not if the statute clearly requires them to

have a different meaning,” was “Well, certainly.” Moreover, Justice Scalia finds several

“faux canons” in Llewellyn’s list. For example, Justice Scalia’s reaction to No. 8,

“Courts have the power to inquire into real—as distinct from ostensible—purpose,” was

“Never heard of it.”479

Justice Breyer, on the other hand, while not explicitly approving of Llewellyn’s

specific canonical thrusts and parries in his Tanner Lectures, did approvingly mention

Llewellyn’s project in a 1991 lecture.480

Moreover, Justice Breyer with Llewellyn places

emphasis on purpose and consequences, both of which are integral components of

Llewellyn’s “situation-sense.” We saw that Justice Breyer put a lot of stock in these

values as well as the intention of the “reasonable legislator.” Llewellyn emphasizes the

same attributes of judicial interpretation. Looking at Llewellyn’s description of

“situation-sense” one can see the two primary foci of Justice Breyer—purpose and

consequence. Llewellyn calls for a judge to view a statute within the “type-facts in their

context” (read purpose), and “at the same time in their pressure for a satisfying result”

(read consequence).

478 Scalia, Interpretation, 27. 479 Scalia, Interpretation, 27. 480 Breyer, Stephen. The 1991 Justice Lester W. Roth Lecture: On the Uses of Legislative History in

Interpreting Statutes,” 65 S. Cal. L. Rev. 845 (January, 1992).

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Duncan Kennedy

Taking at face value the statement of Judge Richard Posner that judicial decisions

are more in the nature of political judgment than the application of legal norms as such, it

is worth looking at an essay written by .Duncan Kennedy (1942- ), professor of various

subjects including jurisprudence at Harvard Law School, in which he examines the rôle

of political ideology or persuasion, if you prefer.481

Kennedy holds degrees from

Harvard College, Yale Law School and an honorary doctorate from the University of

Amsterdam.

Professor Kennedy believes that a judge’s ideological concern is an “ineradicable

possibility of strategic behavior in interpretation.” According to Kennedy, the assertion

that judges attempt to persuade the rest of us that any given decision was driven by non-

ideological concerns is unacceptable as a matter of fact.482

While he believes that

political ideology plays a significant rôle in judicial decision-making, it functions

differently in the judicial realm than it does in the legislative—purely political—realm.

In legislative matters—unlike judicial ones—decisions are not only based on ideology,

but are normally expected to be.

It is a popular notion that judges are to be faithful to the law, not their subjective

predilections. Nonetheless, as Kennedy points out, all legal actors can influence what the

481 Kennedy, Duncan. “Strategizing Strategic Behavior in Legal Interpretation.” 1996 Utah L. Rev. 785.

This essay appears as chapter eight in Kennedy’s A Critique of Adjudication. (Harvard University Press,

Cambridge, 1997). 482 Kennedy includes Justice Cardozo as one that denied a rôle to ideology. (807) Yet, that does not appear

compatible with the following quote from Cardozo’s The Judicial Process: “There is in each of us a stream

of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. . . . We may try to see

things as objectively as we please. Nonetheless, we can never see them with any eyes except our own. To

that test they are all brought—a form of pleading or an act of parliament, the wrongs of paupers or the

rights of princes, a village ordinance or a nation's charter.” (12)

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law is. For example, attorneys are not considered to be acting in an inappropriate way

when they set out to define the law in a manner that will serve some predetermined end,

namely, the best interests of their clients. Yet, “we often speak as though things were

altogether different within the process of judicial decision.”483

No so, says Kennedy, who

clerked for Associate Justice on the United States Supreme Court Potter Stewart. “[L]aw

clerks write opinions that are “result oriented,” in the sense that a rule choice is dictated

by the judge, and their job is to produce the best legal case they can in support of it.”484

It

is not uncommon for judges to “produce a convincing meaning for the legal materials

different from the convincing meaning judges with the opposite work agenda would have

produced (or did produce in a dissent).”485

And, in either case, “judges always ‘deny,’ in

the common sense of the term, that they are acting out of ideological motives. . . . they

explicitly claim the outcome—their disposition of a case by choosing one particular

resolution of a question of law or of rule definition, rather than another--was reached by

following impersonal interpretative procedures that exclude the influence of their

personal ideologies.”486

Thus, according to Kennedy, since there is no measure of proof

one way or the other, the most we can do is to “interpret” judges’ decisions and

determine if the decision makes more sense given the existence of an ideological

preference as opposed to the absence of one. Nonetheless, Kennedy insists that there is

objective evidence of an ideological dimension in the face of an adamant denial.

483 Kennedy, "Strategic Behavior," 785. 484 Kennedy, "Strategic Behavior," 788. 485 Kennedy, "Strategic Behavior," 790. 486 Kennedy, "Strategic Behavior," 791.

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Kennedy, for example, likens judges’ statements of denial to the statement “‘I am not

mad,’ he screamed, veins bulging.’”487

Kennedy identifies three types of judges: constrained activist judges, and

difference splitting judges and bi-polar judges. Constrained activist judges are activists

in the sense that they seek an outcome that is consistent with a particular ideology. They

are constrained, however, by the legal materials. Difference splitting judges are those

that seek to obtain a compromise between competing ideologies. Kennedy mentions

Justice O’Connor as a typical example of a splitting the difference judge who is often the

deciding vote between an otherwise evenly dived court. This example involves states

drawing congressional districts based on race. In a 1993 opinion Justice O’Connor,

writing for the Court in a 5-4 decision that invalidated a North Carolina redistricting plan,

was so unclear that the Court faced the problem just two years later.488

In the second

case, involving a plan drawn by the state of Georgia, Justice O’Connor was again the

deciding vote but Justice Kennedy wrote the opinion for the Court. He emphatically

stated “laws that explicitly distinguish between individuals on racial grounds fall within

the core of [the Equal Protection Clause’s] prohibition.”489

Justice O’Connor, in a

concurring opinion wrote, “Application of the Court's standard does not throw into doubt

the vast majority of the Nation's 435 congressional districts, where presumably the States

have drawn the boundaries in accordance with their customary districting principles.

487 Kennedy, "Strategic Behavior," 806. 488 See Shaw v. Reno, 509 U.S. 630 (1993). 489 Miller v. Johnson, 515 U.S. 900, 904 (1995).

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That is so even though race may well have been considered in the redistricting

process.”490

Difference splitting judges are reacting to ideology as well as the others; it is just

that they are reacting to the ideologies of other members of the judicial panel. Bi-polar

judges combine the traits of the other two. At times they act in a constrained manner at

one end of the ideological spectrum, only to act at other times at the opposite end. These

judges are loose cannons. The best one can do regarding predicting their behavior is to

watch for a movement to the opposite pole after some time at the other.

Kennedy uses “three models of the judge as ideological strategizer as elements in

a theory of the difference it makes to liberal/conservative conflict that so much of our law

is made through an adjudicative process within which liberalism and conservatism are not

supposed to play a role.”491

In other words, can ideology on a conservative-liberal

continuum help explain what judges do and whether one can account for the typology of

judges without resorting to a notion of conscious deceit or utter unconsciousness.

Part of the problem for this task is that substituting ideology as a determinant is

just as indeterminate. Moreover, the categories are not very clear. For example,

contained within each category are many sub-ideologies that appear in both as pro-

business liberal as well as conservatives and pro-civil rights conservatives as well as

liberals. In addition, the categories contain elements that are not internally compatible,

for example, what position might a liberal who favors freedom of speech and rejects

racism take regarding campus regulations against hate speech.

490 515 U.S. 900, 928-929. 491 Kennedy, "Strategic Behavior," 797.

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Nevertheless, even if he is not claiming to be doing in anything “scientific” or

“objective,” Kennedy sees value to his project of analyzing judicial decision-making in

terms of ideology using his tripartite typology. He suggests that, “the parallel between

ideology and legality suggests an inquiry into how people’s false belief in the

determinacy of their own ideological positions inflects the course of democratic

politics.”492

In general, judges avoid acknowledging the existence of ideological dimension by

engaging in denial because “if judges are able to operate without confronting openly the

problematic character of their role, it is more plausible that no one else confronts it

either.”493

Kennedy proposes that “the best way to understand ideological preferences in

judicial conduct is as half-conscious, or in Sartrean “bad faith.” Again, I think the idea of

a half-conscious disposition—one that is “denied,” in Anna Freud’s sense, by the judge to

himself, rather than either “repressed” outright or consciously conspiratorial—fits the

commonsense usage of American political discourse.”494

In addition to denial, Kennedy

adds a helping of cognitive dissonance. As judges espouse a belief that ideology plays no

rôle in decision-making, cognitive dissonance develops because of the presence of an

ideological dimension such that a defensive mechanism, namely denial, becomes

necessary to alleviate the resulting anxiety.495

492 Kennedy, "Strategic Behavior," 801. 493 Kennedy, "Strategic Behavior," 804/ 494 Kennedy, "Strategic Behavior," 792. Anna Freud considered denial as a form of self-defense

mechanism. 495

Kennedy made what in effect is a disclaimer that is worth noting. “I am not saying that all judges deny

the role of ideology, or that those who deny do so all the time, or even that all judges are influenced by ideology. As I said above, some judges are better understood as clueless, or as devoted to agendas that

aren’t ideological at all in the sense in which I’ve been using the term. Others are best understood as

random, or as operating on the basis of truly unconscious motives that are hopelessly complex and also

inaccessible. And in many, many cases, judges experience themselves as constrained by the text, so that

(Continued on next page.)

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Kennedy related his conversation with judges about the possibility that ideology

plays a rôle in their decisions. The judges denied a rôle for ideology, claiming that they

were deciding each case on the merits the issues in light of what is best for society.

Kennedy found that activist judges—conservative and liberal alike—seek to make

decisions that respond to an evolutionary society. Yet, ideologically speaking, “they

have sharply different interpretations of ‘society,’ ‘evolution,’ and ‘needs.’”496

The

judges also claimed that they were independent of ideology; meaning that they “chose”

rather than blindly “followed.” To which Kennedy replies, “The bland persistence in

affirming independence when one’s vote is highly predictable is a perfect example of bad

faith”497

Difference-splitting judges and bi-polar judges “point to their difference splitting

or long-run bipolar opinions and ask us to believe that they are actually outside

ideology.”498

Difference-splitting judges, while claiming to rule in ways that run counter

to a particular, personal ideology are nevertheless ideologically driven to the extent that

the ideology of others play a rôle in their decisions. As Kennedy noted, “ideology is no

less an influence if it comes in only through the back door, so to speak, by structuring his

alternatives.”499

Bi-polar judges claim to be non-ideological rests on the proposition that

they are not siding with only one ideological position. Yet, Kennedy claims, “since he is

proud of his independence and thinks others recognize it, he may be influenced not just

their liberal or conservative or difference splitting or bipolar strategic inclinations turn out to be irrelevant

to the outcome, at least from their own point of view” [807] 496 Kennedy, "Strategic Behavior," 808. 497 Kennedy, "Strategic Behavior," 808. 498 Kennedy, "Strategic Behavior," 810. 499 Kennedy, "Strategic Behavior," 809.

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by his own but by what he thinks his audience’s ideas are about what proportion of liberal

and conservative decisions you need in order to sustain the free agent claim.”500

Kennedy presents two possible theories of how judges should or can relate to the

ideological thing. First, it is conventional to want judges to categorically ignore ideology

and “stick to the law,” or at least just “interpret” it.501

Second, there is the view that

judges could not ignore ideology even if they want to. It would appear judges fitting the

first view would be much more likely to be conflicted and thus engage in denial as a

defense mechanism. As noted by Kennedy, “The conflict is “real,” in my view, because

there is no extant theory that plausibly explains how the judge can decide, once he is

conscious of the possibility of strategic behavior in interpretation, in a way that excludes

ideology, supposing that his sense of justice is congruent with an existing ideology.”502

Kennedy poses an extremely interesting and important question: “what reasons

there are for people outside the role to deny the ideological in judging, to act as

codependents in the judge’s denial.”503

One explanation is that people may want to

believe that ideology can and should be ignored by judges so that a central rôle for judges

in policy-making can be lessened—at least in theory. Another part of the explanation

involves the desire to believe that some neutral force, i.e., law is responsible for

otherwise desirable The explanation includes the notion that there is a fear that if we

500 Kennedy, "Strategic Behavior," 810. 501

In general terms the first view is precisely the argument of Justice Scalia who claims that the text

determines the law regardless of how desirable or undesirable the result. Justice Breyer would no doubt recognize that values—read ideology—are an integral part of the interpretative process thus the pursuit of

his image of democracy. 502 Kennedy, "Strategic Behavior," 818. 503 Kennedy, "Strategic Behavior," 818.

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acknowledged and judges understood the ideological dimension of interpretation, judges

would “tyrannize us worse than they do already.”504

Another reason for the public’s reception of the notion that judges can segregate

interpretation and ideology is people’s desire for harmony. As Kennedy notes, “it is

unpleasant to want or want to be two contradictory things at the same time.”505

Kennedy

explains it by using Jean-Paul Sartre’s example of the “French cafe waiter, a person who

does his job with a vengeance, rendering himself thing-like or factoid, a mere

transmission belt for legal necessity. At the same time, they want to believe that law is

justice, the product of The Judge’s laser intuition, with no contradiction between the two

elements.”506

Thus, “the denial of the ideological, along with addiction to the drama of

inquisition and condemnation for infidelity to law, can be seen as a response to the

demand that role incumbents in general ‘be’ their roles, and that judges in particular ‘be’

their roles with a vengeance.”507

In sum, the public generally expects that “the judge

should model for us the possibility of being outside this ‘fundamental’ situation of

contradiction.”508

Kennedy terminates his discussion of the rôle of ideology in legal decision-

making with a discussion of “projection.” Noting that we often times project onto others

things we deny in ourselves, Kennedy “To the extent they feel guilty about their

504 Kennedy, "Strategic Behavior," 820. Kennedy does not maintain that exposing dangers as myth would

necessarily improve the process, just that the fear of the dangers is the basis for the public’s attitude. 505 Kennedy, "Strategic Behavior," 821. 506 Kennedy, "Strategic Behavior," 822. Random House defines “factoid” as “something fictitious or

unsubstantiated that is presented as fact, devised esp. to gain publicity and accepted because of constant

repetition.” 507 Kennedy, "Strategic Behavior," 822. 508 Kennedy, "Strategic Behavior," 822-823. This expectation includes the use of coercion to create

consensus. If people are engaged in denial, they cannot manage people pointing this out; hence, coercive

consensus.

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ideological contributions to lawmaking, they have a motive for the quite distinct

operation of projecting ideological intentions onto others. . . . To the extent they feel

guilty about their ideological contributions to lawmaking, they have a motive for the

quite distinct operation of projecting ideological intentions onto others.”509

Kennedy furnished an excellent example of each side of the ideological spectrum

attacking the other’s ideological activism while maintaining their own ideological

neutrality. The example is a letter written by a liberal law professor to the Boston Globe

opposing the nomination of conservative law professor Charles Fried to the Supreme

Judicial Court of Massachusetts.510

Fried has had a distinguished academic career, but I do not believe he is an

appropriate choice. He would bring an ideological predisposition and potential divisiveness to a court that has been free of both. Fried was a committed servant

of the so-called “Reagan Revolution,” an agenda that had as one of its main goals

the dismantling of the legal rights and remedies developed under Republican and Democratic administrations for violations of Title VII of the Civil Rights Act of

1964.

The goal was almost accomplished when Solicitor General Fried helped persuade the Supreme Court to abandon decades of precedent and gut the Civil Rights Act

in a series of decisions in 1988 and 1989. The decisions were viewed as so

destructive that Congress took the unusual step of overriding them by adopting the Civil Rights Act of 1991, restoring the law to the status it had before

Reagan’s Justice Department and Fried were so successful in subverting it.

Fried writes in his memoir:

“In many respects the courts themselves had become major

bureaucratic actors, enthusiastically, self-consciously enlisting in the

movement to substitute the judgments and values of the nonproductive sector of society--lawyers, judges, bureaucrats, politicians—for the

self-determination of the entrepreneurs and workers who create wealth.

Egged on by aggressive litigators, the legal professorate, and the liberal press, the courts had become a principal engine for redistributing

wealth and shackling the energies of the productive sector.”

509 Kennedy, "Strategic Behavior," 823. In the current environment of the United States Supreme Court,

one cannot safely speak of “projection,” as such, but it is a fact that justices on that court increasingly

engage in denouncing opponents. 510 Brodin, Mark S. Letter to the Editor, Boston Globe, August 28, 1995, 10.

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This jaundiced attitude toward courts and judges should be carefully

weighed.

Do you want to place on the SJC someone who subscribes to the extremist view

that the courts are engaged in a plot to sabotage capitalism and redistribute

wealth? Do we want someone who asserts that judges are part of the “nonproductive sector of society” to sit in judgment of other judges? Fried’s

nomination should be rejected.

MARK S. BRODIN

Professor of Law

Boston College Law School

So much for the conventional view that ideology and law can be separated.