Hey, folks — believe it or not, I’m one of the authors associated with this site, though I haven’t actually, y’know, posted here for quite some time. You can find me at my main haunt, CardNilly, where I talk about baseball, and particularly the Cardinals. But in my actual real life, I’m a lawyer. Mike’s most recent post here about varying judicial philosophies is correct in a lot of the specifics, but kind of jumbled as to how things are applied. So I thought I’d do a primer on how judges (theoretically) are supposed to go about interpreting the law. If you go to law school you (like I did) can take plenty of classes which delve into this very area of discussion. In fact, you could make a reasonable argument that the arguments and the various theories about how to interpret law are the very soul of the appellate practice. After all, once you get up into the appeals situation, you’re not fighting about the facts any more — you’re just fighting about the law. So here, in a nutshell, more or less, is Jurisprudence 101.
In the beginning, of course, there is the word. And, sadly, there is no guarantee that the word is good, since it’s being drafted by legislators or bureaucrats, neither of which are particularly dependable sorts of folks in terms of writing things down clearly. So the first test is pretty simple: look at the plain meaning of the text of the law at issue. If it is clear from the language at issue what the legislators meant about how the statute should be applied, then life is good and the wheels of justice can roll onward.
(Also, you’ve got smooth sailing if a court before you has said that the term in dispute means X and not Y. This generally doesn’t happen in appellate cases, though, since there would be no dispute. Usually you’ve got a case where none of the courts in your state/federal circuit have said anything about the term, and courts in State/Federal Circuit A say the term means X and not Y, and courts in State/Federal Circuit B say the term means Y and not X.)
Sadly, life is rarely that easy, at least for the tough stuff. Some of the time, clever lawyers on either or both sides can create some kind of an ambiguity in the statute or regulation at issue. So the court’s job is to get rid of that ambiguity somehow — to come down for one interpretation of the statute or another. When doing this, the first thing the courts should do is look at the whole of the statute or regulation — to try to glean some kind of meaning about the term in dispute from somewhere else in the legislation. Here’s the theory behind that: Since we live in a democracy, the word of the people should govern. The word of the people, in this sense, is the text of the statute or regulation at issue. So to the extent at all possible, if the court can derive some meaning for the term in dispute from the word of the people, democracy is upheld and life is grand. (Cue marching bands playing some sort of Sousa march)
This process is called Statutory Construction. As Mike correctly points out, this is where we get the term “strict constructionist,” which refers to judges who construe — using the canons of construction we’ll talk about in a bit — more narrowly than expansively. If the dispute is grammatical in nature, there are four canons which are routinely applied, all of which have fancy Latin names to make lawyers feel like the money they spent on law school was actually worth something. Jargon as a barrier to entry and all that. Anyway, the big four canons are:
- Ejusdem generis — this means, roughly, “of the same kind, class, or nature”. It’s also what the “e.g.” stands for, if you use that when you’re writing. The idea here is that if the term in dispute are general words following a list of specific items, the general words will be construed to be limited to the same kind, class, or nature as the specific items. The standard example given is a Supreme Court case which dealt with the theft of an airplane under the National Motor Vehicles Act back in 1931. The statute enumerated something like “cars, trucks, motorcycles, and other motor vehicles” — and one side wanted airplanes to fall in the catchall term at the end. Makes a certain amount of sense, right? Planes have motors, they’re vehicles, therefore they’re motor vehicles. But the court said that because the other items enumerated were motor vehicles travelling over land, the general term at the end also had to apply to motor vehicles travelling over land.
- Expressio unius est exclusio alterius — “the expression of one thing is the exclusion of another”. This is also pretty simple. If the statute has a list of items without a general catchall term at the end, the statute is presumed to apply only to those items. So if a statute purported to give a public official the power to fine people for jaywalking, double parking, and speeding, the official would not have the power to fine people for parking meter violations as well, even though it’s the same general type of violation. If it’s not stated, it’s excluded.
- Noscitur a sociis — “it is known by its neighbors”. This is fairly similar to ejusdem generis, actually. The idea is that an item in a list will be limited in meaning to the meanings of the other items in that list. So, for example, a statute that makes it illegal to “abandon, dispose, desert or leave a corpse” won’t apply to a county coroner when she goes home for the evening, even though she’s technically leaving the corpse at work. (One hopes.) The meaning of the term “leave” is limited to the meanings of abandon, dispose, and desert due to noscitur a sociis.
- The Last Antecedent Rule. No Latin for this one. The idea behind this is that qualifying terms and phrases only apply to the words or phrases immediately preceding them, and not to more remote terms. For example: a statute which purported to regulate “planes, trains, and automobiles which are blue” would be construed to apply to all planes, all trains, and blue automobiles. The qualifier of the color blue would not be construed to extend to the planes and trains, since they are not the last antecedent. Fun, huh?
- Other general canons of construction include a rule against superfluity (to the extent possible, statutes should not be construed to make language superfluous or meaningless), a rule against implying additional words into a statute, and a rule against omitting words from a statute.
If those canons of construction don’t get rid of your ambiguity, then there are other statutory interpretation rules out there to aid in the court’s decision-making. Note the difference between the terms “interpretation” and “construction” here — when a court is construing a statute, it’s looking for meaning that’s already there based on the language itself. When a court is interpreting a statute, it’s reading meaning into the statute based on one or more outside resources brought to bear on the ambiguous term. In the real world, there’s no real difference between “statutory interpretation” and “statutory construction” — they’re used interchangeably in the media and by politicians. But they do mean different things and describe different processes.
One important interpretation rule is called in pari materia, which means “on the same matter or subject”. The idea here is you should look to the surrounding statutes to see if and how the term is used elsewhere within the statutes. Courts presume — whether rightly or wrongly — that legislatures don’t mean to have the same term mean different things within the body of legislation, so all reasonable efforts will be made to keep the terms consistent across the board. Think of various anti-discrimination statutes — generic terms should probably be interpreted the same way for all types of discrimination, right? It would be weird and strange if the same actions would be discriminatory against blacks but not against women, or whatever. This is only helpful if the disputed term is used elsewhere in the legislation and has a clear meaning, though.
Closely related concepts are the rules that:
- Specific language in one statute controls over broad language in another (ex: Statute One says that walking your dog in a park is a felony; Statute Two says that walking your golden retriever in Central Park is a misdemeanor. If you’re arrested for walking your golden retriever in Central Park, Statute Two controls, since it’s more specific);
- When two statutes directly conflict, the one passed most recently controls; and
- The constitution supersedes mere statutes, and if reasonable, statutes should be interpreted to be constitutional.
Another more controversial interpretive approach is to look at the intent of the author — the legislative body. This is tricky. A lot of times there’s a legislative history that the court can go review. Legislators will give speeches on the record and issue reports that say what their intent is and all sorts of stuff like that. To an extent, that sort of thing can be helpful, so long as there are no contradictions, and you can actually get a chunk of history on point. But in a lot of cases things aren’t clear, or there is no legislative history at all, or — in the case of the US Constitution — the Framer’s statements are hard to come by or wholly inapplicable to modern life. There are good arguments both for and against using legislative intent in cases where that intent may not be clear or applicable, and it ends up being a philosophical choice more than anything.
Yet another “you buy into it or you don’t” approach is an outcomes-based analysis, where ambiguities are resolved by picking the option that’s “best” for society, whatever that may happen to mean. As you can imagine, this sort of decision-making is fairly controversial, since the judge is arguably stepping into the role of a legislator. The term “judicial activism” gets thrown around here a lot. This kind of decision-making leaves me very uncomfortable personally for any number of reasons. But it’s out there and being used every day by judges of every different kind of political persuasion.
The fun thing is that there’s no clear hierarchy between statutory interpretation rules, generally. So you can use one rule to come up with one meaning for the term in dispute, and use another to come up with a diametrically opposed meaning. Or a rule of construction will flatly contradict a rule of interpretation. How various judges weigh and value these competing approaches when they come into conflict determines their jurisprudential philosophy. A strict constructionist, for example, is much more likely to devalue outcomes-based analysis and attempt to resolve the ambiguity through rules of construction and in pari materia, and are hesitant to look at legislative intent (if they intended it a certain way, why didn’t they write it that way?) and outcomes-based analysis.
The “strict constructionist” term has gotten bollixed up with political baggage now and is just code for “anti-abortion” when used by politicians. As Mike correctly points out, the key is to try to look past the political code and results to see what the philosophical bent of the judges are. Rehnquist, for example. was more or less a pure strict constructionist — he looked at the wording of the statute or constitutional provision at issue and proceeded from there. Scalia and Thomas, though on the same side of the fence politically, are better termed as originalists — they’ll go with the wording of the constitutional clause at issue, but will deviate from the plain meaning when it is opposed to their interpretation of the original intent of the framers of the Constitution.
I don’t know enough about him to be sure one way or the other, but my fear is that Judge Alito is a third kind of judge — a strict constructionist who is willing to deviate when the outcomes are undesirable in his mind. Time will tell as to whether that’s the case.
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