Interpreting the U.S. Constitution (and related topics)

[Voronwë the Faithful]

As I said in the capital punishment thread, Justices Scalia and Breyer appeared together at an event at Texas Tech University Law School and provided very different outlooks at how to interpret the U.S. constitution.

Justices Scalia, Breyer spar over their differing ways of interpreting Constitution

Scalia said he has no interest in what legislators intended when making a particular law. Breyer countered, saying judges need to go back and find out the purpose legislators had when crafting a bill.

"I don't at all look to what I think the legislature thought," Scalia said. "I frankly don't care what the legislature thought."

Breyer responded quickly, saying, "That's the problem," which brought thunderous laughter from the crowd.

"You've got to go back to the purpose of the legislation, find out what's there," Breyer said. "That's the democratic way, cause you can then hold that legislature responsible, rather than us, who you can't control."

At the end, the two were asked what they would change about the Constitution.

"Not much," Breyer said. "It's a miracle and we see that through" our work.

Scalia called the writing of the Constitution "providential," and the birth of political science.

"There's very little that I would change," he said. "I would change it back to what they wrote, in some respects. The 17th Amendment has changed things enormously."

That amendment allowed for U.S. Senators to be elected by the people, rather than by individual state legislatures.

"We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states' rights throughout the rest of the 20th century. So, don't mess with the Constitution."

Breyer countered that change has sometimes been needed.

"There have been lots of ups and downs in the enforcement of this Constitution, and one of the things that's been quite ugly — didn't save us from the Civil War — is that there is a system of changing the Constitution through amendment. It's possible to do but not too easy."

[yovargas]

The idea that the intent of a created law is irrelevant to its application is frankly baffling to me.

[Voronwë the Faithful]

Me too. Both from a common sense point of view and from a legal point of view.

[Cerin]

The idea that the intent of a created law is irrelevant to its application is frankly baffling to me.

Was he saying the intent of a law was irrelevant to its application, or was he saying the intent of a law was irrelevant to whether or not it is consistent with the Constitution?

[yovargas]

Oh good. I was thinking this was the view held by those who don't favor the "originalist" view of the Constitution.

xpost with Cerin

[Voronwë the Faithful]

The idea that the intent of a created law is irrelevant to its application is frankly baffling to me.

Was he saying the intent of a law was irrelevant to its application, or was he saying the intent of a law was irrelevant to whether or not it is consistent with the Constitution?

While the quote is not entirely clear, as a practical matter if Scalia as U.S. Supreme Court justice is discussing a law, in all likelihood it is in the context of whether it is constitutional.

Still, from my viewpoint, the intent of the legislative body in passing a law is in most cases going to be relevant to the question of constitutionality, because one step in determining whether a law is constitutional is to determine what exactly the law does. And one of the basic tenents of statutory construction is to look at the legislative history to determine the intent of the legislature in passing the law.

Scalia is really showing how far outside of the judicial mainstream he is.

[Dave_LF]

I hope the idea that the Constitution is "providential" and shouldn't be amended is also pretty far outside the mainstream. :|

[River]

I think the guys who wrote it would be aghast at such an attitude.

[nerdanel]

That said, there is some degree of merit to stating that the legislature should express itself plainly, and if it could not be troubled to do so, its "intentions" should not be considered. To be honest, my adventures in statutory interpretation thus far in my career have made me extremely sympathetic to Scalia's point of view. For the non-lawyers: when Scalia says that he "doesn't care what the legislature thought" - he's referring to his oft-stated maxim that the legislature needs to trouble to express itself plainly in the text of the statute, and the courts should not consult legislative history, which he views as a judicial wild goose chase re: determining "legislative intent."

Once one ventures deeply into the legislative history of a complex, poorly written statute, one understands Scalia's perspective quite well. It's not as though the legislature writes up on a single piece of paper, "Here's what we intended," and then the courts can go in and look at the piece of paper and say, "Ah, it's all clear now." The legislative history (from which "intent" is deciphered) requires digging through countless murky committee reports, reading expressions of the views of individual committees that may or may not be relevant to the final bill, figuring out which committee sponsors said what and deciding to what extent to give weight to the bill's sponsors, trying to discern meaning from which amendments made it into a final bill and which did not, etc. Here's the thing: rarely will each of these factors point in the same direction, towards a particular interpretation of the statute. It's tedious, tear-inducing work, and the longer you do it, the more you realize that "discerning Congressional intent" can be equivalent to finding unicorns. If one committee writes, "We think that sentence X is really important" and sentence X is in some versions of the bill, then deleted prior to voting at the last minute without explanation, should we assume that Congressional intent was to exclude whatever was accomplished by sentence X? Or should we assume that Congress cared about sentence X - because a committee explicitly made clear that it did, and most members of Congress never explicitly expressed an opinion about sentence X one way or the other?

What if the House Judiciary Committee makes clear that it thinks the bill has two purposes, X and Y, and the Senate Judiciary Committee ignores X and Y altogether, but proffers somewhat contradictory purpose Z as the reason for the legislation? What, then, is the "intent" of Congress? If the House Judiciary Committee and Energy and Commerce Committee make inconsistent statements in their reports, with respect to a bill that affects the work of both committees, which statements should the courts prioritize in discerning the "intent" of Congress?

These questions are difficult and there is no magical judicial guidebook to resolving them. You may end up saying, "I think 40 percent of the evidence suggests that some members of Congress wanted to achieve X, 30 percent suggests that other members of Congress definitely wanted NOT to achieve X, and 30 percent of Congress was thinking about Y and really didn't care about X." That does not tell you how to construe a statute. So what often ends up happening is that the courts decide the case as they think best, anyway, and then cite to the excerpts of the legislative history that support their decision (favorable legislative history is like statistics - you can nearly always find some to support your position).

I'm no originalist, but at this point I am extremely sympathetic to Scalia's view of statutory interpretation. Nor am I convinced that the "judicial mainstream's" use of legislative history to discern intent is necessarily applause-worthy, or done in a consistent manner. Finally, it is not necessarily the case that Scalia would only discuss legislative interpretation with respect to a law's constitutionality, since the Supreme Court often deals in questions of good old federal statutory interpretation that are of no constitutional consequence. This is particularly true when Congress hasn't spoken plainly, thus sending the courts off on the judicial treasure hunt that is legislative history research.

EDIT I should hasten to add that where the text of a statute is unclear, but the legislative history admits only of one clear interpretation, I stand far more ready than Scalia to consult the legislative history. It's just that where Congress could not achieve the desired clarity in the text, it's often not the case that the legislative history offers a significant improvement with respect to clarity.

[vison]

That said, there is some degree of merit to stating that the legislature should express itself plainly, and if it could not be troubled to do so, its "intentions" should not be considered.

Exactly. There should be no need to figure out "intentions".

[Voronwë the Faithful]

In an ideal world, legislatures would use perfectly clear language and their intent would be crystal clear. But this is not an ideal world, nor will it ever it be (I would even argue that it should not be, but that should probably be for a separate discussion in Tol Eressëa). In the real world, the meaning of legislation is often not clear from the letter of the law, and the only choices are to look at the legislative history to try to determine what the legislature meant to do, or to substitute one's own (inevitably biased) opinion as to what the letter of the law means. Moreover, in many cases (I would be tempted to say most cases, though I don't have the statistics to back it up) the legislation in question is a state or local statute and the legislative history is not nearly as obtuse as in nel's examples. In my experience, more often than not it is possible to ascertain a fairly clear idea of what the legislature's overall intent was in passing a law was by looking at the history. And in any event, I stand by the assertion that in the real world in which legislation is inevitably going to be somewhat uncertain it is better to at least make the attempt than to just assume that one's own opinion about the meaning of the legislation is accurate. And if it is not possible to do than at least in the context of a constitutional analysis the likely answer should be that the statute is unconstitutionally vague and ambiguous.

Finally, it is not necessarily the case that Scalia would only discuss legislative interpretation with respect to a law's constitutionality, since the Supreme Court often deals in questions of good old federal statutory interpretation that are of no constitutional consequence. This is particularly true when Congress hasn't spoken plainly, thus sending the courts off on the judicial treasure hunt that is legislative history research.

That is true, although it would be interesting to see some statistics as to what percentage of cases that the SCOTUS grants certiorari to are case that involved constitutional questions. I suspect that it is fairly high. And as to cases in which the court is dealing with good old federal statutory interpretation that are of no constitutional consequence, it is even more true that the justices must engage in an analysis of the legislative history to determine the Congress' intent, as you yourself suggest. (I note that another type of non-constitutional cases that SCOTUS potentially hears are cases involving state or local statutes or ordinances that are potentially preempted by non-constitutional federal laws.)

[nerdanel]

To be straightforward, I have virtually no experience in dealing with state or local legislation of any sort as an attorney - I'd estimate no more than 20ish cases total, and many of those only involved discrete motions. (I've dealt with local San Francisco legislation for both academic research and political/commission purposes, but not practice-purposes.) I was talking about the federal system, and (to a lesser extent) the international treaties that the federal courts have to interpret - which have two layers of legislative history, the travaux preparatoires of the international body and the domestic legislative history re: Congressional ratification. That's most of what I know, and given that my research interests deal with federal immigration law, the federal courts, federal constitutional law, and international human rights law, that's all I'm likely to know for the foreseeable future.

But at the same time, I think Scalia was also primarily talking about federal legislation. I imagine that a very small portion of his court's docket is state and local legislation, as they'd usually only reach that issue in determining the constitutionality of state legislation, incl Supremacy Clause issues. His prior judicial experience is on the DC Circuit, which sees even fewer state law issues than the average circuit for obvious reasons. I suspect that his perspective, like most attorneys', is shaped by the cases he deals with on a routine basis.

I'm not a Scalian purist re: never consulting legislative history. So I really disagree with very little of your most recent post. However, the discussion was starting to take the tone that Scalia's perspective was nothing short of baffling, so I hoped to shed some light on why his perspective is actually quite understandable (even if it is too "pure" for me to endorse it fully).

[yovargas]

Yikes! My reflexive, layman, and almost certainly too naive reaction to that is that if a law is so ambiguous that even highly trained law professionals can't quite figure out what the law is supposed to do then maybe it shouldn't be considered valid law at all. How could anyone be expected to keep a law that even lawyers don't understand??

[Aravar]

Nerdanel, have you read Pepper v. Hart where the House of Lords decided that it was permissible to look at Hansard, the record of what is said in Parliament, in order to interpret legislation?

On a related note to what extent to the US Courts look at pre-contractual negotiations in interpreting contracts? The rule over here is against doing so, with certain exceptions.

[Teremia]

(yov, it was a real eye-opener when I was doing my taxes a few years ago and realized there were some tax law matters NOBODY understands, not even the IRS! as far as I could tell, anyway. I like to know what the rules are supposed to be, so when I saw there wasn't a There There, I looked like this: )

[yovargas]

(yov, it was a real eye-opener when I was doing my taxes a few years ago and realized there were some tax law matters NOBODY understands, not even the IRS! as far as I could tell, anyway. I like to know what the rules are supposed to be, so when I saw there wasn't a There There, I looked like this: )

Okay, yeah, I don't know if there's ever been a consideration of making laws like that unconstitutional but I'm gonna say maybe they should be.

[Holbytla]

If you watch C-Span and hear the pros and cons of the arguments from both sides of the aisle, then I think intent is often pretty transparent.
I think it becomes occluded when they piggyback issues together.

There is also no way to forsee every inevitability when drafting legislation, and I doubt legislators intend many of the indiscressions that arise from enacting laws.

Even with all of its faults, I am often amazed and impressed that the Constitution has survived basically intact for all of these years and has remained extremely relevant.

[nerdanel]

Justice Scalia tells Cal Lawyer that the 14th Amendment does not apply to women/gender discrimination.

Q: In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

A: Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

He also announces later in the same interview, hopefully sarcastically, that because originalism has the answer to a lot of controversial topics - the constitutionality of the death penalty, abortion, suicide, etc. - he does not need to read briefs filed on these issues.

[Holbytla]

I can mostly agree with the last two sentences, but his way of speaking on the whole is a bit harsh and divisive. His overall muddled point that the Constitution is not all encompassing, and shouldn't be, could be relayed in a much more palatable way.

[Cenedril_Gildinaur]

Yikes! My reflexive, layman, and almost certainly too naive reaction to that is that if a law is so ambiguous that even highly trained law professionals can't quite figure out what the law is supposed to do then maybe it shouldn't be considered valid law at all. How could anyone be expected to keep a law that even lawyers don't understand??

A very good point Yovi. The problem is though that such a position would invalidate many of the laws passed in the last several decades.

Not that I would consider that to be a bad thing