Keeping Judges Leashed (But Not Muzzled)

Unelected legislators?

On June 8, 2011 there was a column in the Globe and Mail written by a very distinguished law professor at my university. In it, he argued that when choosing candidates to sit as Supreme Court justices, or indeed to sit in any court, we should rightly pay attention to the values they hold, as these will necessarily colour their interpretations of the laws. The precise details of Professor Hutchinson’s argument are less interesting to me than many of the reader comments to the web version of the column.

I myself was one of those who commented, and here is my exchange with another reader calling himself Peter Lucas:

PETER LUCAS: To say it’s unrealistic to expect judges follow the law is the same as saying it’s unrealistic for bus drivers to drive a bus. It’s their job.

SPECTACLED AVENGER: That’s very simplistic. It assumes there is no such thing as a hard case or an unclear or poorly drafted law. It also ignores the fact that societies may change while laws remain static, demanding a more flexible attitude by judges in order to avoid judgments that are absurd by anyone's standard.

Also, I’m not sure you have a good grasp of what law is. Law does not just consist of written statutes that can be mechanically read off from statute books, otherwise there would be no need for judges (or lawyers for that matter). Most of our existing law is unwritten and open-textured, or consists of broad and general principles that must be applied to very particular circumstances. Such law requires interpretation and judgment — which, after all, is why they’re called “judges”.

PETER LUCAS: Avenger, who determines if or when a society changes? Surely that should be the task of the voters through the elected parliament. It’s not a judge’s job to determine if there is a societal change.

I believe I have quite a good grasp of law and how it operates. Hence my concern about judges overstepping.

Your reply was good, thank you.

SPECTACLED AVENGER: Hi Peter. I suppose the problem with social change is that it’s incremental: we suddenly notice one day that it has happened. The people may notice it before the politicians do. And often politicians have a vested interest in not sticking their necks out on anything unless they’re forced to do so by the courts. I don’t have as much faith as you do in the representativeness of our “representative democracy”, which is why I think there’s a strong role for knowledgeable magistrates not beholden to the political game all the time. A difference of basic philosophies I guess?

Also, as a conservative (now there’s a slippery word), I like the idea of constitutional limits on government action. I dislike political entrepreneurs just as much as you dislike judicial ones.

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Peter Lucas seems an intelligent chap, and good-natured too — he didn’t take my initially aggressive tone too personally.

(This aggressive tone is an unfortunate habit developed during many years’ training as a philosopher. I have tried to break myself of it, with some success. It is unpleasant. You will recognize this tone if you spend any time around academic philosophers. It is largely the reason why philosophers aren’t known for having many friends who aren’t themselves philosophers.)

However, Peter Lucas’ position is a common one among those less knowledgeable about how law works than he is. There is a layperson’s view which says that law is written down somewhere, and that it’s the judge’s job to simply apply it. End of story. If a judge is perceived to go beyond the text, he or she is presumed to be too “political”, a major no-no in the lay Canadian mind (and in the American one too, I imagine). “Political” judges “make law”, thus arrogating to themselves the power of elected legislators. Therefore, unelected “political” judges are undemocratic.

The Literalist View

The lay view supposes that judges are simply supposed to apply the laws. This presumes that laws are always clear and never in need of interpretation. If anything special at all is required of judges, it is simply the possession of a memory capacious enough to store large quantities of legal information. We can call this the literalist view of adjudication. It posits judges as semi-computational legal processors: facts are plugged into them and then matched up against their database of laws, and after some cogitation, out pops a judgment. It is an absurd view, which is why it’s disheartening to find that so many people — including many of our elected leaders — profess to believe in it.

Some fifty years ago, the great legal philosopher H.L.A. Hart remarked on law’s “open texture”. Typically, a law has a semantic core of settled meaning, surrounded by what he called the “penumbra” of contestable meaning. As an example, imagine you are walking in a park. You come across a posted sign that says “No vehicles in the park”. Some small print at the bottom of the sign refers the reader to Municipal By-law #5301-A35-7.

When you get home, you decide to look up Municipal By-law #5301-A35-7 on the city’s website. This by-law says that “No vehicles shall be permitted in any outdoor public park within the limits of the city.” As laws go, this one seems simple, no?

Assuming that there is no room to quibble over where the limits of the city are, or what are the limits of the park you like to stroll in, it seems that the key semantic concept in this by-law is the term “vehicle”. A car or motorcycle would probably be part of the law’s core of settled meaning here: you’d have to be pretty intellectually challenged not to consider a car as falling under the concept of “vehicle”. But what about a skateboard? A bicycle? An electric scooter? A pogo stick? A Russian wolfhound? Harder to say. Contrary to the literalist view, when we’re dealing with penumbral cases, the text of the law can give no guidance. One can’t just mechanically read the correct meaning off the text, even in as simple a case as the “No vehicles in the park” by-law.

The Original Intent View

Another more nuanced offspring of the literalist approach would be the “original intent” view. Here, if the judge must decide whether, say, a pogo stick is a vehicle, and if the text offers no guidance, then the judge should consider what the original intention of the law was. He might look to the statute’s preamble (if it happens to have one), or to the legislative debates surrounding the passing of the law. These might give him guidance as to what the legislators intended when they passed the law.

We can distinguish between two possible kinds of original intent, a strong form and a weak one. Strong original intent says that we should base legal interpretation on precisely what the framers of the law actually had in mind when the law was framed. This presents at least a couple of difficulties. First, we often simply lack evidence as to what a person was thinking at a given point in time.

Second, a legislature usually has multiple members, and they may all have slightly different things in mind when they vote for legislation. So which particular legislator’s intent should we deem authoritative? After all, there might not be just one intent.

This problem arises in acute form in US constitutional law. Conservative constitutional scholars will speak of the authority of the “Framers’ intent” for interpreting the Constitution. But why should the Framers be considered absolutely authoritative, rather than, say, the delegates to the individual state ratifying conventions? Choosing to vest this authority in the Framers has its own problems. For example, Article I, section 9 reads “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” What “Framers’ intent” reading shall we give this in relation to the institution of slavery? Some delegates to the Constitutional convention saw this compromise provision as a step toward the eventual abolition of slavery, beginning with a ban on importation in 1808. Others saw it as a protection of slavery, since those states which had slaves could keep them, and states like Virginia that had a “surplus” slave population stood to profit economically by selling their unique product in the new territories once an import ban on slaves was in place and fresh supplies from Africa dried up. Thus, there seem to be at least two different and conflicting Framers’ intentions with respect to this section.

Third, besides the question of whose legislative intent should be authoritative, an intuitively reasonable interpretation of a statute might be nothing close to what the framers had in mind, for quite contingent reasons. For instance, in the “No vehicles in the park” example, imagine we find out that the by-law had been passed in 1820 with the intention of preventing injury to citizens from fast moving horses and carriages. Obviously, the framers in 1820 could not have had cars or motorcycles in mind when they passed the legislation. So, on the strong original intent view we would have to allow cars into the park, while horses would still be banned, because the framers did not (could not) have cars in mind when passing the legislation. This seems counterintuitive, making nonsense of the law and upsetting what we thought was the core meaning of the term “vehicle”. Too strong an original intent reading can lead to absurdity.

What about a weaker form of the doctrine? We might, for example, hold that it’s not only what the framers’ actually had in mind at the time, but also our judgment of what the framers would have in mind were they present now to adjudicate the case at hand. Thus, if the legislators of 1820 were around today, they would likely include cars within the ambit of the “no vehicles in the park” by-law.

Such an approach might work like this: If the original intent of the city councilors behind the “No vehicles in the park” law was to prevent damage to the grass in city parks, then objects that don’t cause damage to grass are not to be considered vehicles for the purposes of the legislation. Or if the intent was rather to prevent danger to people in the park from fast-moving vehicles, then kites and pogo sticks might be permissible. This helps us get around the problem of legislators in 1820 not having cars in mind when the legislation was drafted. Their ignorance of automotive technology doesn’t matter, so long as we can summon in our minds those legislators form the past and plausibly imagine that they would ban cars because they damage grass or pose a danger to people. We could call this weaker view a functional intent view, because it looks to the function that the law was formulated to serve.

Sounds straightforward, right? Not necessarily. For one thing, a law may no longer actually serve the function for which it was intended, in which case perhaps it ought not to be regarded at all (some might argue that the Second Amendment to the US Constitution is an example of this). It is doubtful that conservatives who espouse an original intent view of legal interpretation would want to go this far; after all, if the text exists, then it is law and ought to be followed. It is not for unelected judges to pick and choose which laws to enforce.

In addition to laws that no longer serve the function for which they were intended, some laws have been formulated to serve a specific function and still serve that function, even though everyone would rather they didn’t, for example, laws that systematically discriminate against certain historically despised groups. Here the conservative would say that it is for elected legislators rather than judges to repeal such legislation. But if the former have neglected to do so, must judges sit back and slavishly allow injustice to occur? That is not a conclusion I am entirely comfortable with, and I don’t think any self-respecting higher court judge would be comfortable with it either.

Public Choice Scepticism of Original Intent

As I have mentioned elsewhere, the public choice school of economics uses economic methods to model non-market (i.e. political) decision-making. Assuming that people act from rational self-interest, and assuming that legislators are human beings (a questionable premise, I know), we can also presume that politicians too act in the service of their rational self-interest. This explains such phenomena as rent-seeking and legislative logrolling.

Legislation is not a simple matter of elected representatives of the people’s will virtuously passing laws for the common good. Many laws are passed to serve special interests or the interests of legislators themselves. More often than not, legislation is the outcome of compromises and horse trading. Logrolling is a perfect example: various politicians strike bargains to support each others’ pet legislation, thereby ensuring that many bills are passed, none of which would garner a majority if politicians voted in the absence of quid pro quo commitments. The result is reams of legislation few people really wanted. Even when the legislation is desirable, it may be voted on for multiple reasons, some of them not in the public interest (as the constitutional slave trade clause above illustrates). Deal-making and self-interest are how things are done in Ottawa and Washington. This is the basis of the old joke that laws are like sausages: you might like them, but you don’t want to see how they’re made.

Given the above, the public choice approach to legislation has two implications for any original intent theory of legal interpretation:

1.    Due to the various overlapping interests that may converge in the formation of legislation, there may be no such thing as a single overarching and orthodox original intent. There may be multiple intents, in which case it is unclear which should be considered authoritative.

2.    Even if we can divine a single unified original intent, there may be no reason to believe that it was formed with a view to the common good, in which case it should not be considered authoritative.

I have been arguing that neither the literalist nor the original intent view of legal interpretation is coherent. In the absence of the guidance such theories would provide, we must rely on the wisdom and experience of professional and unelected judges. The populist distrust of judicial activism, whether well-founded or not, must yield in the face of necessity: judges must be allowed to exercise a degree of discretion in interpretation.

This does not mean that judges interpret laws based on mere whims or personal bias. There are many examples where judges have given decisions reluctantly, in the face of their own personal beliefs, because the law did not allow them to decide in the way they might prefer. Laws, legal principles, and a respect for their own office will act as guides to — and constraints on — how far judges can exercise discretion. It is very difficult to find examples where a judge has simply decided to ignore the law in the service of her own pet beliefs. A judge’s values matter, but they are not decisive.