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«THE TANNER LECTURES ON HUMAN VALUES Delivered at Princeton University March 8 and 9, 1995 ANTONIN SCALIA is Associate Justice of the United States ...»

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The Tanner Lectures on Human Values Another accepted rule of construction is that ambiguities in a newly enacted statute are to be resolved in such fashion as to make the statute not only internally consistent, but also compatible with previously enacted laws. W e simply assume, for purposes of our search for “intent,” that the enacting legislature was aware of all those other laws. Well of course that is a fiction, and if we were really looking for the subjective intent of the enacting legislature we would more likely find it by paying attention to the text (and legislative history) of the new statute in isolation.

W e do not really look for subjective legislative intent. W e look for a sort of “objectified” intent -the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris. As Bishop’s old treatise nicely put it, elaborating upon the usual formulation: “[T]he primary object of all rules for interpreting statutes is to ascertain the legislative intent; or, exactly, the meaning which the subject is authorized t o understand the legislature intended.” And the reason we adopt this objectified version is, I think, that it is simply incompatible with democratic government -or indeed, even with fair government -to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated.

It was said of the tyrant Nero that he used to have his edicts posted high up on the pillars, so that they would be more difficult to read, thus entrapping some into inadvertent violation. A legal system that determines the meaning of laws on the basis of what was meant rather than what was said is similarly tyrannical. It is the law that governs, not the intent of the lawgiver. That seems to me the essence of the famous American ideal set forth in the Massachusetts constitution: A government of laws, not of men.

Men may intend what they will; but it is only the laws that they enact that bind us.

Joel Prentiss Bishop, Commentaries on the Written Laws and Their Interpretation (1882), 57-58 (emphasis added; citation omitted).

Common-Law Courts in a Civil-Law System 93 [SCALIA] 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 -which is precisely how judges decide things under the common law.

As Dean James Landis of Harvard Law School (a believer in the search for legislative intent) put it in a 1930 article:

[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.

To condone in these instances the practice of talking in terms of the intent of the legislature, as if the legislature had attributed a particular meaning to certain words, when it is apparent that the intent is that of the judge, is to condone atavistic practices too reminiscent of the medicine man.10 Let me describe for you what I consider to be the prototypical case involving the triumph of supposed “legislative intent” (a handy cover for judicial intent) over the text of the law. It is called Church of the Holy Trinity v. United States,11 and was

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decided by the Supreme Court of the United States in 1892. The Church of the Holy Trinity, in the city of New York, contracted with an Englishman to come over to be its rector and pastor. The United States claimed that this agreement violated a federal statute that made it unlawful for any person to “in any way assist or encourage the importation or migration of any alien.., into the United States,... under contract or agreement... made previous to the importation or migration of such alien.... to perform labor or service of any kind in the United States....” The Circuit Court for the Southern District of New York held the church liable for the fine that the statute provided. The Supreme Court

reversed. The central portion of its reasoning was as follows:

It must be conceded that the act of the [church] is within the letter of this section, for the relation of rector to his church is one of service, and implies labor on the one side with compensation on the other. Not only are the general words labor and service both used [in the statute], but also, as it were to guard against any narrow interpretation and emphasize a breadth of meaning, to them is added “of any kind;” and, further,... the fifth section [of the statute], which makes specific exceptions, among them professional actors, artists, lecturers, singers and domestic servants, strengthens the idea that every other kind of labor and service was intended to be reached by the first section. While there is great force to this reasoning, we cannot think Congress intended to denounce with penalties a transaction like that in the present case. 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.” The Court proceeds to conclude from various extratextual indications, including even a snippet of legislative history (highly unusual in those days), that the statute was intended to apply only to manual labor -which of course renders the exceptions for actors, artists, lecturers, and singers utterly inexplicable. The Court Ibid., at 458- 59.

[SCALIA] Common-Law Courts in a Civil-Law System 95 then shifts gears and devotes the last seven pages of its opinion to a lengthy description of how and why we are a religious nation.

That being so, it says, “[t]he construction invoked cannot be accepted as correct.” It concludes:

It is a case where there was presented a definite evil, in view of which the legislature used general terms with the purpose of reaching all phases of that evil, and thereafter, unexpectedly, it is developed that the general language thus employed is broad enough to reach cases and acts which the whole history and life of the country affirm could not have been intentionally legislated against. It is the duty of the courts, 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.13 Well of course I think that the act was within the letter of the statute, and was therefore within the statute, end of case. Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former. I acknowledge an interpretative doctrine of what the old writers call lapsus linguae (slip of the tongue), and what our modern cases call “scrivener’s error,” where on the very face of the statute it is clear to the reader that a mistake of expression (rather than of legislative wisdom) has been made. For example, a statute may say “defendant” when only “plaintiff’’ makes sense. The objective import of such a statute is clear enough, and I think it not contrary to sound principles of interpretation, in such extreme cases, to give the totality of context precedence over a single word. But to say that the legislature obviously misspoke is worlds away from saying that the legislature obviously overlegislated. Church of the Holy Trinity is cited to us whenever counsel wants us to ignore the narrow, deadening text of the statute and pay attention to the life-giving legislative intent, It is of course nothing but judicial law-making.


The Tanner Lectures on Human Values There are more sophisticated routes to judicial lawmaking than reliance upon unexpressed legislative intent, but they will not often be found in judicial opinions because they are too obvious a usurpation. Calling the Court’s desires “unexpressed legislative intent” makes it all seem OK. You will never, I promise, see in a judicial opinion the rationale for judicial lawmaking described in Guido

Calabresi’s book A Common Law for the Age of Statutes. It says:

[B]ecause a statute is hard to revise once it is passed, laws are governing us that would not and could not be enacted today, and,.. some of these laws not only could not be reenacted but also do not fit, are in some sense inconsistent with, our whole legal landscape....

There is an alternate way of dealing with [this] problem of legal obsolescence: granting to courts the authority to determine whether a statute is obsolete, whether in one way or another it should be consciously reviewed. At times this doctrine would approach granting to courts the authority to treat statutes as if they were no more and no less than part of the com- mon law.14 Indeed. Judge Calabresi says that the courts have already, “in a common law way,... come to the point of exercising [the lawrevising authority he favors] through fictions, subterfuges, and indirection,”l5 and he is uncertain whether they should continue down that road or change course to a more forthright acknowledgment of what they are doing.

Another modern and forthright approach to according courts the power to revise statutes is set forth in Professor William Eskridge’s recent book, Dynamic Statutory Interpretation. The essence of it is acceptance of the proposition that it is proper for the judge who applies a statute to consider ‘‘ ‘not only what the statute means abstractly, or even on the basis of legislative history, but also what Guido Calabresi, A Common Law for the Age of Statutes (1982), 2 (emphasis in original).

Ibid., 117.

Common-Law Courts in a Civil-Law System [SCALIA] 97 it ought to mean in terms of the needs and goals of our present day society.’ ”16 The law means what it ought to mean.

I agree with Judge Calabresi (and Professor Eskridge makes the same point) that many decisions can be pointed to which, by subterfuge, accomplish precisely what Calabresi and Eskridge and other honest nontextualists propose. As I have said, “legislative intent” divorced from text is one of those subterfuges; and as I have described, Church of the Holy Trinity is one of those cases.

What I think is needed, however, is not rationalization of this process but abandonment of it. It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.

It may well be that the result reached by the Court in Church of the Holy Trinity was a desirable result; and it may even be (though I doubt it) that it was the unexpressed result actually intended by Congress, rather than merely the one desired by the Court. Regardless, the decision was wrong because it failed to follow the text. The text is the law, and it is the text that that must be observed. I agree with Justice Holmes’s remark (quoted approvingly by Justice Frankfurter in his article on the construction of statutes) : “Only a day or two ago -when counsel talked of the intention of a legislature, I was indiscreet enough to say I don’t care what their intention was. I only want to know what the words mean.”17 And I agree with Holmes’s other remark, quoted approvingly by Justice Jackson: “We do not inquire what the legislature meant; we ask only what the statute means.” Thinking this way makes me what I confessed to be at the outset of this talk: a textualist. I am aware that in some sophisticated William N. Eskridge, Jr., Dynamic Statutory Interpretation (1994), 50 (quoting Arthur Phelps, “Factors Influencing Judges in Interpreting Statutes,” Vanderbilt Law Review 3 [1950]: 456, 469).

Felix Frankfurter, “Some Reflections on the Reading of Statutes,” Columbia Law Review 47 (1947): 527, 538.

1 8 Oliver Wendell Holmes, Collected Legal Papers ( 1920), 207, quoted in Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 397 (1951) (Jackson, J., concurring).

The Tanner Lectures on Human Values circles that is considered simple-minded; I think it is not. It does not mean that I am too dull to perceive the broader social purposes that a statute is designed, or could be designed, to serve; or that I am unaware that new times require new laws. It means only that I believe judges have no authority to pursue those broader purposes or write those new laws.

Textualism should not be confused with so-called strict constructionism, which is a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be- though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means. The difference between textualism and strict constructionism can be seen in a statutory case my Court decided last term.19 The statute at issue provided for an increased jail term if, “during and in relation to... [a] drug trafficking crime,” the defendant “uses... a firearm.” The defendant in this case had sought to purchase a quantity of cocaine;

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