MESSAGE TO JUDGES: STOP IN THE NAME OF THE LAW: This fine Iain Murray post discusses what England and America (and India) share in our understanding of laws, rights, and constitutional guarantees. The basic point is that culture, not contracts or constitutions, guarantees our rights. A country with a culture that respects the rights of citizens will preserve those rights even without a constitution; a country with a constitution can lose its respect for rights and reinterpret its constitution to override them. (Who could that be?)

Murray quotes Walter Williams on one of the major benefits of the rule of laws as vs. the rule of men: You know what the law is. You can tell what’s legal from what’s illegal, and that makes it possible for you to predict and plan. (Hayek hammers on this in The Road to Serfdom.) But we’ve lost a hefty chunk of this advantage of the rule of law. Williams cites the hulking tomes of regulations that no actual human has ever read; I’d also cite the power we’ve given judges to determine, case by case, what those regulations and laws really mean.

When I worked at the National Catholic Register (subscribe today!), I wrote a story on mandatory contraceptive coverage. The EEOC (pardon my French) handed down a decision stating that any business with more than 15 employees must cover prescription contraceptives for its employees in its health plan. If it didn’t offer the coverage, it would be guilty of sex discrimination.

So I called around, trying to find out what this meant for Catholic organizations and Catholic business owners. I’m sorry, I was told by pretty much everybody, nobody knows. Nobody knows if Jane Catholic could get a religious exemption. Or Georgetown University. Or Mother Teresa’s Missionaries of Charity. The only way to find out what the law actually meant was for some unlucky Catholic to refuse coverage for her employees; get sued; let a lawyer snuff up her bank account; and watch as the courts decide either for or against her. Cute, no?

This is why Justice Scalia’s two essays in A Matter of Interpretation are so refreshing. Alone of all the contributors to the book, he focuses on the citizen, the subject of the laws, the person who wants to avoid illegal action. By interpreting the laws in terms of their plain meaning (textualism), he hopes to make the laws intelligible and predictable to that average citizen. He’s trying to (among other things) minimize ex post facto lawmaking.

There are drawbacks and fissures here, of course. At least one of the contributors (Laurence Tribe, I think) points out that it’s hard to determine the “plain meaning” of the sweeping language of many Constitutional guarantees. The grand, general language of, for example, the First Amendment looks like a License to Philosophize for judges and legal writers. And if Scalia’s interpretive philosophy were applied across the board (which he doesn’t do, for a number of complex reasons), the First Amendment today would mean only what it would have meant to most late-18th-century citizens. (If that could even be determined.) There are good reasons to restrict the First Amendment that narrowly. If I vote for an amendment that says “Congress shall make no law… abridging the freedom of speech, or of the press…” I don’t want it to be interpreted, centuries later, as meaning, “The KKK must get federal money,” or “Municipalities shall make no law abridging the freedom of nude dancing.” Nonetheless, it’s evident that plain-old-original-meaning interpretation, however admirably it handles most legal disputes, handles like a Mack truck on a NASCAR track when it comes to grand Bill of Rights-type guarantees. I’m not sure where Scalia ultimately comes down on this question.

My own stance, for what it’s worth: Broadly-phrased guarantees offer more wiggle room than most laws. That means the courts should not overturn legislation that falls within the wiggle room. But the wiggle room is not infinite. What would someone trying to follow the law think the law meant? What would such a person have thought when the law was passed? When those two answers conflict, the latter should “trump,” because a preference for “original meaning” (not original intent of the legislators) forces more stability and thus follow-ability onto the law. The ideal here is to make judging less fun and exciting; I am pro-boring judges. (In their decisions, anyway. Scalia has a swift, satirical, morally serious style that is a joy to read.) And to bring this vast post full circle, this kind of quiet, citizen-centered judicial philosophy can only be sustained by a culture on the bench, in the law schools, and in society at large. Words on paper won’t do it, since we’re talking about the people who interpret those words. Only ethos can sustain judicial ethics.

But this is a very lay laywoman’s opinion. Corrections, clarifications, arguments, and stray thoughts are all welcomed at eve_tushnet@yahoo.com. We Never Close.

Final question: Scalia lays out a number of guidelines for interpreting fuzzy statutes and precedents. But he fights very shy of using natural law as one of those guidelines. I can understand why–allowing judges to be philosophers is necessarily allowing them to be kings, inflicting their own particular judgments of natural law on all of us. But any legal philosophy requires underlying beliefs about truth, right conduct, and the purpose of the laws. Why should it forbid judges from using moral reasoning as well (when, and only when, the textual meaning is unclear)? Can judges be forbidden from doing that?

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