AMERICAN CONSTITUTION SOCIETY
DISTRICT OF COLUMBIA LAWYER CHAPTER LUNCH
ORIGINALISM AND STATUTORY CONSTRUCTION
A PANEL DISCUSSION
Thursday, January 15, 2004
12:50 p.m.
RFD Washington 810 Eighth Street, N.W.
Washington, D.C.
MODERATOR: Professor Jonathan T. Molot George Washington University School of Law PANEL MEMBERS: Professor William Eskridge, Jr. Yale Law School Professor John F. Manning Columbia University School of Law
MR. MOLOT: If I could have your attention. I
want to thank you all for coming, thanks especially to
Gary O'Connor for having organized this and for
Professors Eskridge and Manning for coming down for the
event.
I should say that, Gary, before you run off to
grab napkins, you chose a great topic for an ACS Lawyer's
Lunch because I would say that the exchange that was in
the Columbia Law Review a few years ago between
Professors Manning and Eskridge is a great example of
where scholarship can be interesting in its own right and
also relevant for lawyers and judges, and it was really
important for two reasons.
One, they showed us--they took a debate that's
very important in statutory interpretation to lawyers and
judges as well as scholars and really shed new light on
it by tapping some historical sources people hadn't
looked to. And second, in the course of doing that, they
also taught us how to use history and how not to use
history, and not just for this debate but for others, and
at least they taught me how to, and I can tell you why,
is that a few months before, there were three articles.
Professor Manning's came out first and then Professor
Eskridge's response, and then Professor Manning had a
reply, and a few months before the first Manning article
came out, I had written my own article on the founders'
views of statutory interpretation.
It was the first thing I had written as a law
professor. You know I put in my time researching it, and
thought I was covering new ground and I had gotten into
it with a different contemporary debate in mind, looking
into how, well, how do we compare the founders' views of
the judicial role and the judicial role on statutory
interpretation in particular with the contemporary
reality that judges have ceded a lot of their
interpretive authority to agencies under Chevron, that
they defer to administrative interpretations of statute.
So I set off with that project and I looked
back at the founding--and I was shocked by what I found.
Kind of in law school you're taught about legal realists
looking back at 19th century formalists that viewed law
as a science, and it seemed very naive, and I thought,
you know, this is the olden days, and you look at the
founding, they were incredibly sophisticated about law
and language and interpretation.
On the one hand, they understood the inherent
ambiguity of the written word, of language generally and
of law in particular, and therefore understood that
interpretation was a creative enterprise and that judges
did an important thing in interpreting statutes.
On the other hand, they also understood there
were real constraints on judges in the course of
interpretation. They focused on stare decisis, prior
cited cases, and also on canons of construction, and it
was incredibly nuanced and
balanced what I found when I looked back at the founding
materials, and I thought this is fantastic stuff to find,
and actually there wasn't all that much written about it
before, and you know junior scholar got in good
placement, a good article, I thought, wow, I've done
something, you know.
And then two months later, Manning's article
came out, a few months later Eskridge's, and then
Manning's reply, and I realized I had done nothing.
Really what I had covered was a small snippet of the
history, and essentially what they taught me and taught
lots of people who have read the article--scholars, and I
hope it's ultimately relevant to lawyers and judges
writing briefs and writing opinions--is it's not enough
to pick out the snippets from--you know, I've looked at
the Convention, I've looked at the ratification debates--
there wasn't as much in the convention. There's a fair
bit in the ratification debates on views of judging and
in statutory interpretation, but it's not enough to pick
out those snippets. You've got to look back. They look
back at the English materials which the founders were
educated in.
They looked at early American cases before the
founding. They looked, of course, at the Convention and
at the ratification debates and the states deciding
whether to sign off on the Constitution, and then they
looked at several decades of history soon after that for
examples of how judges perceived the Constitution and
viewed their role.
And in doing that, really set an example for
scholars writing articles and I think frankly for lawyers
generally on how to use history. And that's one thing
that was valuable at the debate.
The other thing is they really cast a new light
on a debate that was a really important one over whether
judges should be faithful agents of Congress, carrying
out Congress' instructions as subordinates to Congress
or, on the other hand, whether judges are partners with
Congress. They are a coordinate branch, a co-equal
branch of government and when Congress passes a statute,
it passes something that's inevitably ambiguous, and it
puts it out there for others to apply and the law takes
on meaning as judges go ahead and apply the law to
particular facts.
The debate had raged, but people hadn't looked
back at the history. And so I found the debate
incredibly useful, both for the example it set for using
history and law and for the particular way in which they
applied it and shed new light on a really important
debate that judges and justices talk about all the time.
So I guess Professor Manning will start and
make his case, Professor Eskridge make his, Manning
reply. I think as a moderator--someone said today my job
is going to make sure they don't tear each other apart.
I think, in fact, I'm going to have to egg them on a
little bit because they may end agreeing more than we
would hope. So let's hope we can get them a little
feisty.
Okay.
MR. MANNING: Thanks, Professor Molot. I just
wanted to thank the ACS for inviting me to this debate.
I will be brief which, of course, is a term of art for I
will go over my allotted time.
[Laughter.]
MR. MANNING: Although billed as a debate, the
interesting thing for me is how much the exchange that
Professor Eskridge and I had in the pages in the Columbia
Law Review revealed common ground. This should be as
disturbing to the Federal Society as it is to the members
of the American Constitution Society. It's not to say
that Professor Eskridge and I no longer have differences.
We do. That's something I'll address at the end, but our
differences, the difference between textualists and
pragmatists I think now is much clearer and is much
smaller in relation to our common understandings.
All right. So there are two things I want to
cover. The first is it seems to me that the important
thing about this debate from my perspective is that it
helped to refocus the question of the appropriate methods
of statutory interpretation to where it ought to be on
inferences from the constitutional structure.
Now much of the writing in the new wave of
statutory interpretation scholarship including writing by
prominent textualists like Judge Easterbrook and Justice
Scalia have treated the problem of interpretation as one
of ascertaining Congress' commands. Right. That's the
starting assumption. What we have to do is read what the
legislature did as accurately as possible, figure out
their intent, their meaning, whatever you want to call
it. It's a command theory--right--you're looking to try
to decipher the legislature's instructions.
Then what the textualists argued was in the
first wave of textual scholarship was because
legislatures are complex, because there are a lot of
backroom deals, we can't ever really tell what Congress
would have done with the question that it didn't actually
resolve, and so we stick as closely as possible to the
plain meaning of what they actually enacted, what the
legislators, what Congress actually enacted.
Now, the fact is interpretation does require a
theory of legislation--right--how do you read the words.
But it also requires a theory of adjudication, what
powers do judges have in relation to those words, and
that was, I think, what was missing from the discussion
to a large extent and that Professor Eskridge's exchange,
that our exchange really brought out.
So think about the following problem. Think
about the most simple imaginable statute, a statute that
says something like no dogs in the park. Now, I start
from the presumption that language can be determinant and
that this sentence is semantically clear in relevant
respects. So that is to say a reasonable person with
relevant linguistic and cultural knowledge of English
would understand that this command does not apply to
wolves or coyotes or to those little pot-bellied pigs
that people in Los Angeles used to bring into the parks
in the 1980s when I was living there.
You know in a lot of ways all these animals
create the same kinds of mischief that dogs in parks do,
but the semantic meaning of no dogs in the park, no
matter how much one tortures the language, will not cover
that.
So, let's say that I want to bring my pet
coyote into the park and a constable wants to stop me
from doing it. So what are the ways that you could
interpret the no dogs in the park language to cover a
coyote, notwithstanding its semantic clarity?
Well, one thing you could say is, look, given
the purposes or the reasons that the city council might
have passed the legislation--right--to control noise, to
preserve hygiene, to preserve safety, if they had thought
about coyotes, they certainly would have used a different
word other than dogs. They would have used canines or
quadrupeds or pets or whatever to describe the
prohibition.
They had a broader intention, as is obvious
from the purposes of the statute, and implementing the
statute against a coyote which would implicate all the
mischiefs of bringing a dog into the park a fortiori
would simply implement the legislature's intent; right.
So this is intentionalism.
Now, the second way one could imagine resolving
this problem--right--getting the ban to apply to coyotes
is to say judges simply have common law powers. Federal
judges, in fact, the argument goes, have common law
powers in relation to statutes. They can extend a
statute or contract it, not because the legislature
necessarily intended, for example, the no dogs
prohibition to apply to coyotes and simply misspoke, but
rather because judges in our system are common law
lawmakers and can build on even the clearest
constitutional command, even the clearest statutory
command.
So they could extend the dog statute to
coyotes, they could contract it not to apply to police
dogs if they think that there are relevant policy
interests that a common law judge would take into account
in deciding whether to apply the ban to a working
professional dog and not a disruptive pet.
All right. So these are the two possible
approaches: the intentionalist approach, the common law
approach, and so what is this debate have to do with all
of this? In a couple of articles in the 1980s, Bill
Eskridge made the point that textualists have largely
dropped the ball on this question by assuming and not
establishing that judges, federal judges, in particular,
are faithful agents, not partners with the legislature.
That what we've assumed is that what you're
trying to do is figure out, as accurately as possible,
what the meaning of the commands is, and haven't
considered whether there is some inherent judicial power
to adjust statutes equitably according to their ratio
legis or background purpose.
And what's worse, as he pointed out, English
judges, who were the model for our judiciary, had prior
to the American Revolution and prior to the adoption of
the U.S. Constitution interpreted statutes equitably,
which I will use as a shorthand for the kind of common
law reasoning I described earlier. So, in England, if a
statute imposed a certain kind of liability on the warden
of the jail of London, English courts would have no
difficulty extending that carefully delimited liability
to all jailers on the realm. They would do so by
equitable interpretation.
Now, as Professor Eskridge pointed out, many
state courts had used the same practices in the founding
era and founding era debates indicated that at least some
of the founders understood judges to have such broad
lawmaking capacities.
And so the question he posed was this: does the
judicial power of the United States adopted in Article
III, including the Marbury v. Madison power to say what
the law is, include the power for federal judges to act
like common law judges in relation to statutes? And that
was the source of what turned out to be--I don't know--
pretty close to 300 pages of writing in the Columbia Law
Review between our three pieces on this, as I described
it, seemingly narrow topic.
Okay. But this is not, I think, the place to
get into the details. My friend over in the center here
may think differently. Much of our debate, I think,
boils down to the question about how to categorize
evidence about the original meaning of the judicial power
and how much weight to attach to different categories of
evidence, and unsurprisingly, we each bring our prior
assumptions about interpretation to the task of
categorizing and interpreting that evidence, and I'll
just give one example.
I think Professor Eskridge perhaps relies more
heavily than I would on the ratification debates. As I
read them, there are relatively few statements, somewhere
between a half dozen and a dozen, that seem to presuppose
equitable methods of interpretation. These comments seem
to me in the context of a multi-state, 13-state, debate
that was, in some respects, national, and, as Professor
Eskridge acknowledges, in some respects local, a half
dozen to a dozen remarks strike me as rather scattered
and sporadic, and as a textualist, I'm going to be very
reluctant to rely on legislative history like the
Federalist Papers to determine the meaning even of an
open-ended term like the "judicial power."
So what do I rely on? I rely mainly on the
constitutional structure. Again, I'm only going to give
one example of ways in which I rely on the constitutional
structure. It seems to me that one of our great
safeguards of liberty is the requirement of bicameralism
and presentment. All legislation has to go through two
houses and clear the president's desk, and so it has to
be passed through three institutions that answer to
different constituencies.
Now, political scientists have shown that this
effectively adopts a super-majority requirement for the
adoption of legislation, and so political minorities in
our society have extraordinary and explicitly conferred
power to block legislation or more importantly to insist
upon compromise as the price of assent.
That means that if judges can extend or
contract the scope of legislation in the guise of
exercising judicial power, it permits them to rewrite the
specific compromises that emerge from the process of
bicameralism and presentment and to make hash of this
explicit constitutional safeguard.
Now, still, despite our disagreement on the
particulars, including this particular, I think the
important point about our debate is that we have helped
to move the debate about what methods of interpretation
are appropriate to where it belongs to inferences about
the Constitution, to that kind of argument.
All right. So that's my first point of
similarity and the first commonality that's come from the
debate.
A second consequence of the debate is that I
think textualists and pragmatists have a lot more in
common in their method of interpretation. Textualists
have long since abandoned literalism. We do believe that
textual determinacy is possible, but we also acknowledge
that language is a matter of social convention.
There is no intrinsic meaning of the word
"dog." The word "dog" means something to us only because
we're all familiar with the practices of our culture that
have been refined over centuries of usage, and so
textualists acknowledge that in the specialized community
of lawyers of legal language, you have to pay attention
to things like terms of art.
You have to use the words like "prize" and
"capture" in admiralty law, and understand them according
to the art of admiralty, the common law of admiralty or,
as Professor Eskridge has argued, perhaps the word
"discriminate" in Title VII may have had a colloquial or
technical meaning of invidious discrimination rather than
its literal meaning of merely to differentiate.
Textualists use canons of interpretation
provided that they're well enough established to be part
of the background environment against which Congress
enacts its statute, so we have no problems with using the
rule of lenity or the canon of disfavoring
interpretations in derogation of the law of nations, and
the short of it is that, like pragmatists, we understand
words in context in their full social and cultural
context, and so the difference between textualists and
pragmatists are perhaps smaller than was once believed.
Now, that doesn't mean that there are no
differences, and I think what divides us is still
important, and I'm going to close with giving an example
from a real case that I think Professor Eskridge and I
would decide differently, and it goes a little like this:
Imagine a statute that says that a prevailing
plaintiff can recover attorney's fees. And so I'm, let's
say, a prevailing plaintiff whose attorney has hired an
expert witness to help him with the case, and--him or her
with the case--and so do I recover an expert witness fee
as part of my attorney's fee?
Now, a literalist would say no, an expert is
not an attorney. Attorney's fee means a fee for an
attorney. That's not what textualists do. Right.
Textualists would recognize that the term "attorney's
fee" in our social usage might include all sorts of
things that are incidental to the representation. Right.
It might include copying costs, courier costs, the costs
of paralegals, even potentially the cost of experts.
All right. Now, let's imagine another fact is
added to this, that every other previously and subsequent
enacted attorney's fee statute provides for the recovery
of, quote, "attorney's fees and expert fees."
A textualist would say that the semantic
meaning in that case is clear. Congress in light of its
prevailing practice doesn't use the term "attorney's fee"
to include expert fees. A pragmatist, someone engaging
in equitable interpretation, might say the term
"attorney's fee" should be construed broadly to make the
statute coherent in a policy sense, in a common law
sense, with every other attorney's fee statute, even if
the language doesn't bear that meaning in context.
This is in the end what remains of our
differences. I think it continues to be an important
difference, and I think what our debate has done is to
clarify really what the stakes are and what remains that
divides us.
Bill.
MR. ESKRIDGE: Yes. I'd also like to heartily
thank the ACS and Jonathan and Gary for bringing us
together today, and your article--you're thinking about
your Stanford article, I take it?
MR. MOLOT: Right.
MR. ESKRIDGE: That is a fabulous article, and
I think should actually be read together with the three
articles we're talking about here. It really enriches.
I didn't actually read it until I was finished writing my
article, and then I did redo parts of my article in light
of what you had found.
So this is really great. Now, I agree with
John, we're divided by common language to a certain
extent. I think theoretically there is something that
divides us. In practice, I actually vote with you on the
attorney's fees case the way you set it up, not the Casey
case, but the way you set it up.
And one of the things we need to keep in mind
is that to some extent we've both gone native. John
clerked for Justice Scalia, but I think you approach
statutory interpretation very differently from Justice
Scalia even though you're on the same theoretical road
map.
Let me use a different hypothetical to frame my
remarks. My hypothetical is the classic HLA Hart no
vehicles in the park statute. Statute says no vehicles
are allowed in the park, and let's even say the statute
defines vehicle the way a dictionary would, and that's a
mechanism to transport a person from one place to
another. Let's say that's the definition.
Okay. So if you bring an automobile into the
park, the gendarme will certainly stop you, and if it's
Rudy Giuliani will probably do unspeakable things to you.
But let's imagine the following three circumstances:
Has this been a violation of vehicles in the
park statute, and can Giuliani arrest and beat you?
[Laughter.]
MR. ESKRIDGE: One is a mother pushes her
perambulator into the park, transporting a baby from one
place to the next. Now, I'll make an important caveat,
the baby is not arrested, but the mother and the
perambulator are and they're impounded.
Second example would be a little six-year- old
child, girl or boy--it doesn't matter to me--brings her
or his tricycle into the park. Again what does the
gendarme do?
Third example, Professor Manning has a serious
and life-threatening accident in the center of the park,
Molot comes in with an ambulance to save the critically
injured Manning; does Giuliani stop the ambulance at the
entrance, et cetera, et cetera?
Now, I think the nuance that divides us is I
think how far do you take text because one thing we
should all be clear about as lawyers--most of us in this
room are lawyers--the text solves the case in 99.9
percent of the cases, and it solves it in a way that's
consistent with common sense, with policy, with
legislative intent, with purpose, with norms, with the
Constitution, with all of it.
We're really only talking about a small
percentage of the cases, and I would dare say in my
vehicles in the park statute, most of the cases can be
easily resolved by looking at the text and applying it in
a very common sense way that we could probably all
readily agree with.
So, for example, the automobile, or even a
motorcycle, possibly even a bicycle. We'd probably
mostly agree on that. The hard cases are the ones in my
opinion where a statute is being applied to something
that is beyond the core concentration of the legislature
and that raises normative questions about the breadth or
sometimes narrowness of the words that are used, and each
of these examples does it in a slightly different way.
And so one of the things I would submit is that
there should not be some huge divide between the faithful
agent and the partner. I would argue the faithful agent
has to be a partner in many circumstances, and the
partner is not being a cooperative partner unless she is
faithful to what the other person is up to.
Moreover, I would also submit, and this is a
deep philosophical disagreement, but I think we would
still vote the same way in the cases because we're
pointy-headed intellectuals, and that is that I would
resist the concept instinct in American law's rhetoric
but not in its operation that there is a preexisting
plain meaning which precedes the interpretive process.
Now, I would submit in most cases, it's
invisible. Whatever work is being done by interpretation
is invisible. You say bicycle, you say motorcycle, you
say truck, and you immediately think vehicle fits the
purpose of the statute, seems sensible, da-da-da-da. We
apply it.
When you get to baby carriage, then you have to
do more interpretive work, and I would argue that norms
are always at work in statutory interpretation, not just
dictionary description, but also normative work. It's
usually invisible.
It shows up however you vote in the case when
you get to the baby carriage, the tricycle and even the
ambulance.
Now, the ACS billed this as a discussion of
originalism, and I want to relate my hypothetical to
originalism. I want to think about the original intent
of the Constitution and the judicial power of the federal
courts to interpret Article III and why we as moderate
attorneys and professors and what not should be
interested in originalism on this question, and I think
most of this is in very much agreement with what
Professor Manning has said.
I think one reason is, as we have seen, is that
constitutional original intent is an important part of
rule of law discourse where lawyers, where trained
lawyers, where lawyers participate in policy
disagreements, et cetera, and it seems to me even as the
Lawrence court said, for example, recently, even if
original intent is not the endpoint, it is certainly a
starting point, and it is important materials for us to
consider in thinking about either constitutional law or
even the power of courts and statutory interpretation.
Originalism has received at least a partial
revival in the Rehnquist court, and the standard account
such as in Printz and other decisions by Justice Scalia
is that in doing original meaning, a court is supposed to
look at the practical background including judicial
practice that the framers brought, either to the 1787
Constitution or the 1868 14th Amendment. You're supposed
to look at the ratification debates. Some originalists
will not look at the drafting debates, but you are
supposed to look at ratification debates.
Justice Scalia and Justice Thomas, our most
eminent originalists, almost always look to the
Federalist Papers, sometimes, in fact, usually as the
only source of the ratification debates, and then you
look to the constitutional structure and purpose, and
Professor Manning emphasizes that.
Now, secondly, second reason we might be
interested in the original expectations, and that is a
reason of irony and perhaps politics and mischief maybe,
and that is that judges and justices who are most
interested in constitutional original intent and most
willing to draw broad constitutional rules from snippets
of the Federalist Papers, see e.g. Printz, are the same
justices who follow strict plain meaning, and the
justices who are most dogmatic about that statutory plain
meaning, and most unwilling to bend to contextual factors
such as legislative purpose, the facts of the case,
international law, sometimes but not always
constitutional law.
And it seems that feature of the strict plain
meaning rule, which is not dominant in federal courts,
but it is dominant in a certain portion of the judiciary,
including the Supreme Court, as I argue in my Casey
article inconsistent with the standard historical
methodology for understanding the statutory
interpretation baseline for the Article III judicial
power.
In other words, applying exactly the
methodology Justice Scalia told us we had to apply in the
Printz case, I come up with a very different approach to
statutory interpretation, at least than Scalia, Thomas,
sometimes Rehnquist, and other very strict textualists
follow.
So, for example, just digesting a little bit of
what I found, I did find that state judges before and
after 1789 understood words and their application more
flexibly and were always open to reconsidering statutory
plain meaning in light of contextual factors including
but not limited to justice in the individual case and
broader principles of public law. Arguably the most
famous statutory interpretation case before the
Philadelphia convention was Rutgers v. Waddington, a 1784
New York case interpreting a statute that seemed on its
face to disallow a military orders defense for a charge
brought against a merchant, that he had injured property
during the British occupation of New York City in the
1770s.
Alexander Hamilton, an important framer,
represented the defendants, and argued that the New York
statute was inconsistent with the law of nations and
otherwise unreasonable. All of the attorneys in the case
argued that the words needed to be understood in light of
the normative context including the law of nations and
the Treaty of Paris and Chief Judge Duane of the New York
court agreed, and I can give the quotation in Q&A if
people want it.
That was the leading interpretation. It was--
Manning likes to use the word "equitable." I would use
the word "contextual" and I would certainly use the idea
that the Chief Judge refused to read the language
acontextually and insisted on reading it in light of its
normative context including the law of nations.
Now, Rutgers was certainly a controversial
decision, though the people who attacked it in New York
were overwhelmingly people who were opponents later of
the Constitution. George Washington, the President of
the Philadelphia Convention, explicitly endorsed the
Rutgers decision, and the 34 lawyers at the Philadelphia
Convention would all or almost all have known about it,
and the large majority of them had public careers that
went along exactly the same lines including Hamilton of
New York, James Wilson of Pennsylvania, who was even
broader than Hamilton, Judge Oliver Ellsworth of
Connecticut, who had some judicial opinions going that
far, as well as Judges Wythe and Blair of Virginia ditto.
And then I argued that in the ratification
debates, even the anti-Federalists like Brutus accepted a
narrowing power of judges, explicitly accepted that
judges can read statutes more narrowly than they're
written in some circumstances. Their main fear was a
broad avoidance power, particularly as applied to state
statutes.
Hamilton agreed with Brutus as to the narrowing
power, and indeed in the main Federalist Paper, but by no
means the only one relevant, Hamilton specifically in
Federalist 78, same place he talked about judicial
review, set forth a partial theory of statutory
interpretation, and I'm quoting from Federalist 78.
"These [ill-humors of the political system]
sometimes extend no further than to the injury of the
private rights of particular classes of citizens by
unjust impartial laws." This is all quoting Hamilton.
Here also the firmness of the judicial
magistracy is of vast importance in mitigating the
severity and confining the operation of such laws.
Now, the argument is that the dilemma for the
new textualists is that the Article III power to
interpret statutes is a much milder form of textualism
and it's a much more contextual, a kinder, gentler
textualism, as it were, than that often argued by Justice
Scalia.
I think the most characteristic statement of
the judicial task was uttered by Oliver Ellsworth, the
second Chief Justice of the United States, and he says--
I'm quoting one of his opinions in 1796:
"If however the construction of a statute would
amount of a denial of justice, would be oppressively
injurious to individuals or would be productive of a
general mischief, I should then be disposed to resort to
any other rational exposition of the law which would not
be attended with these deprecated consequences."
And there are lots of quotations you can take
from other judges including Chief Justice Marshall, one
of the most mischievous, inventive and textually
brilliant statutory interpreters in American history.
Now a third reason it seems to me to be
interested in the original debates is that the early
statutory interpretation cases I think are intrinsically
interesting. I think they exemplify pragmatic and
normative approaches to statutory texts. And there is no
one better exemplifying this than John Marshall.
My time is drawing to a close so I can't give
an exegesis of one of my favorite but obscure cases,
Talbot v. Sieman, an 1801 case. If you want to ask about
it in Q&A, I can do a wonderful exegesis of that case.
[Laughter.]
MR. ESKRIDGE: But my conclusions from John
Marshall, here's how John Marshall would have approached
the vehicles in the park statute. He would not have
applied it to the baby carriage, maybe to the tricycle,
looking to the statutory purpose, maybe other statutes,
see how tricycles are treated in other statutes, and I
also think he would not have applied it to the ambulance
or would have come up with a compromise ruling. It
violates the statute, but Giuliani is estopped from
stopping the ambulance.
You know that's what Marshall would have done.
He would have come up with some devious but fair and
ultimately very rational approach to the statute which
would go beyond the simple plain meaning of the text.
So my three conclusions are the following, and
I think these are three important lessons for statutory
interpretation today. One is the plain meaning of words
does not preexist the interpretive process. This
principle is as old as Aristotle, and every framer, to my
knowledge, agreed with Aristotle that the purpose of the
legislature is to pass general statutes which are then to
be applied by judges--this is the role of judges--
attentive to the concrete facts of any case.
And in fact, Aristotle's view was there is no
meaning of a statute until it is actually applied to
concrete facts. Okay. And this is a theory of statutory
interpretation, uncontroversial in the 18th century,
uncontroversial in the 19th century, that is normative
and not simple plain meaning.
Second point is that creative interpretation
beyond plain meaning is not equivalent to judicial
usurpation or judicial infidelity to legislative roles.
My point, that judges, under Article III--remember it's
not Article I, Article I.1 and I.2, it's Article I, II
and III. The judiciary like the legislature is a
coordinate branch of government. It is both a partner
and an agent, and its fidelity is owed not just to the
legislative program certainly but also to the norms and
values in the Constitution.
And then a third point, which I haven't had a
chance to develop much in today's talk, is that one thing
you see in the early period that you do not see as much
in the 20th century, maybe it's reviving now, is the
importance of international law, transnational norms and
treaties for a very cosmopolitan court interpreting
statutes in light of those norms, and I can give lots of
good examples of that if it comes up in Q&A.
Thank you.
MR. MOLOT: Do you want to respond?
MR. MANNING: I'll just take a couple of
minutes. One thing is this is, I think Professor
Eskridge's remarks point out or highlight one of the sort
of terminological differences that we have about what
counts as textualism and what doesn't. So in the baby
carriage example, the tricycle example, and the example
in which I'm grievously wounded in the park, I suppose
the implication is as a textualist, I would want
Professor Molot not to bring the ambulance into the park,
but I would.
[Laughter.]
MR. ESKRIDGE: As a victim, you want it.
MR. MANNING: No, not as a victim, as a
textualist, both really. But here's the reason.
The literal meaning of vehicle, and of course
anybody who teaches legislation has looked up this word
in many dictionaries, and roughly paraphrasing, it's a
conveyance for the transportation of persons and things
on land or water or air, something like that; right.
But the fact is that one of the features of
textualism and one of the ideas of using language in the
way a reasonable user of language uses it is that you're
going to take language with its nuances, with its
contextual nuances, in the way that, sometimes in ways
that are not captured by dictionaries.
So I doubt that if anyone of us were pushing a
baby carriage into the park, even the most literal-minded
cop would not come up and say, sir, you're going to have
to move that vehicle. It is not the way we use the word
"vehicle."
Similarly, we don't use the word "vehicle" to
describe tricycle. It's not the way--it is literally a
vehicle, but it is not the way our social usage has come
to understand it. Ambulance presents another aspect of
textualism that I think is a little bit softer than
people usually understand it to be, but I still think
quite different from the interpretive method that
Professor Eskridge describes.
The ambulance case would also be easy for a
textualist because there is an implied--there's a
convention that says that prohibitory statutes like that
don't apply to the sovereign unless the sovereign is
clearly named; right. That's why, for example, if the
U.S. attorney offers a plea agreement to a codefendant to
cooperate and testify, the U.S. attorney has not bribed
the witness by offering something of value because law
enforcement officials, as public officials, are subject
to this canon of exception from general prohibitory
statutes for the sovereign.
Similarly, an ambulance can go into a park, a
police officer can go into a park in his or her car, by
application of the same established canon, but it's not a
question of applying some open-ended notion of what would
the legislature do, how do we put ourselves in the mind
of the legislature or what's the best purpose to apply in
this context. It's the application of a well-established
social convention.
Now, I won't go too far into the history here,
but I just want to point out two things. One, Rutgers v.
Waddington was an extremely, extremely controversial
case. It's not by any means clear that the 34 lawyers
who gathered in Philadelphia, even if their
understandings were relevant to the public understanding
of the judicial power, which I don't think it is, that
those 34 lawyers would have regarded it as necessarily
being the model for understanding federal judicial power
and reinforcing that.
It's very important to understand that the
Federal Constitution was in large measure a reaction
against the practices and arrangements that had gone on
in state constitutions prior to the meeting in
Philadelphia in 1787.
There were enormous abuses that were largely
attributed to a parchment separation of powers, right, an
insufficient, genuine set of separation and checks and
balances. And so the state courts pretty widely before
the adoption of the Constitution were vulnerable to
legislative control through the control of salaries,
through legislative review of judgments, through
legislative power to remove upon the address of both
houses, that is by simple legislation, to remove judges.
And so the idea that you're going to have
different behavior from judges in state courts prior to
the adoption of the Constitution than you'll see after
the Constitution is adopted in the federal context is not
at all surprising.
All right. My final point. It is true, like
any judge, Chief Justice Marshall, was creative in his
reading of the text. Every judge is. Justice Brennan
was, Justice Stevens certainly is, Justice Scalia is very
creative in reading words. That is to say I don't think
that they always follow language exactly the way an
average member of society or even an average lawyer would
understand it.
But the fact is that the Marshall court was
talking faithful agent talk and doing it rather early and
decisively. So Pennock v. Dialogue from 1829, Justice
Story: We are not at liberty to reject words which are
sensible in the place where they occur merely because
they may be thought in some cases to impose a hardship or
to tie up beneficial rights within very close limits.
The Joseph Segunda, 1825, again Story: It might
have been wise policy to have extended these benefits
much further, but courts of law can deal with questions
of this nature only so far as the legislature has clearly
expressed its will.
The Schooner Adeline, 1815: The statute is
expressed in clear and unambiguous terms. We cannot
interpose a limitation or qualification upon the terms
which the legislature itself has not imposed. I really
literally could go on and on. I won't. I'll just give
you another quote, Evans v. Jordan, on the Circuit Court,
Chief Justice Marshall said in 1813: "The legislative
department is confided without revision. The power of
deciding on the justice as well as wisdom of measures,
wherever then their language admits of no doubt, their
plain and obvious intent must prevail."
And this is in many, many, many cases. Some of
the quotes that Professor Eskridge mentioned are in the
context of courts saying when the language is obscure,
when it's ambiguous, if it's not clear, then courts can
take into account hardship, they can take into account
conflict with the law of nations. They can apply the
rule of lenity. There are all sorts of conventions and
practices that allow the mitigation of the severity and
harshness, as Hamilton put it, of statutory language
evident in the early cases, including in the early
federal cases.
But what I would submit is that these cases
were almost always carefully qualified by the
specification that the language of the statute must admit
of some doubt. And that's something that certainly a
textualist today would freely admit.
And I have subsided.
MR. MOLOT: Well, I'm going to open it to
questions, but I'll go ahead and ask at least one before
I open it to everybody, take my privilege. I'm curious
as to where you guys really disagree. There's all the
tone of how you disagree, but when you think about it,
Professor Manning accepts that context is relevant to
reading the text, that before you'd even arrive at plain
meaning, you'd go through some contextual analysis, there
would be some interpretation going on. But he then would
accuse people of going beyond the plain meaning, taking
into account various factors that might lead you to stray
from the plain meaning.
How different is that? Isn't it just a
question of timing? If you have all these interpretive
practices that you might use in order to decide what a
statute means, when do you say I've used enough that now
that's the plain meaning and anything I do beyond that is
an equitable extension of the statute or inequitable
change in the statute? Is there--and it may just be a
question of psychology of how confident you are in the
plain meaning of language with very little context
considered.
MR. ESKRIDGE: Well, I think we differ most in
terms of how much of the judicial veil we want to leave
up. That's true. Justice Scalia would have nothing to
do with anything that John Manning had to say about the
vehicles in the park statute, and by the way, I disagree
with you on the tricycle. I think a tricycle actually
probably should be regulated. The purpose of the statute
is probably safety. You know that would be the obvious
purpose and it's probably supported by the legislative
history.
MR. MOLOT: And that's why Manning was actually
bleeding because Eskridge hit him when his child rode the
tricycle through the park.
MR. ESKRIDGE: Absolutely. On the ambulance
thing, remember my ambulance was a private ambulance, it
was not a government ambulance. So John is not only
rewriting the statute, but he's rewriting the
hypothetical.
[Laughter.]
MR. ESKRIDGE: So I think Justice Scalia would
go with me on the tricycle. I think on the baby
carriage, Scalia would say, well, that's an absurd
result, but now Manning has criticized the absurd result
exception, so Scalia and I would vote the same way, I
think, on the ambulance thing and Manning would be left
in lonely dissent.
Now, the difference, it seems to me, is mainly
that sort of the pointy-headed law professor thing,
saying, well, meaning does not preexist the interpretive
enterprise. The incentive of judges, and I know there
are a number of law clerks in the room, so don't go back
to your judges and saying, oh, we ought to say in the
next opinion, oh, we're going to interpret statutes
dynamically and normatively if it doesn't preexist and
what not. The judge will fire you if you say that.
The job of judges is to hold up the mask, and
the mask is that we're simply applying what's there as
preexisting and if you gave the same task to a hundred
people of goodwill and intelligence, they'd reach the
same answer.
And most of the time that's true. Sometimes
it's absurd, but the judges will still want to say it or
at least not to admit that that's not true. And so
Manning is still--he wants to allow them to hold up the
mask, and I'm just not there. I'm just not there. No, I
think the mask has slipped. I think it's fine for judges
to say that it's part of their job, but it's part of my
job to sort of suggest the way in which this is highly
normative.
That's one place we disagree. Though in terms
of voting, I don't think that predicts how we would vote.
A second place I think where we disagree is
that I would take the position that John Marshall takes.
Mr. Manning says, oh, one of his early decisions, 1829.
Now for you historians, Marshall was on the court--what--
1801. He's almost dead in 1829, and he might even be
dead soon after that and holds on for another few years,
so that one of his enemies can't point a successor.
Let me read from a case in 1801 when Marshall
was still young and vigorous and not almost dead. And
this is Talbot v. Sieman. The act of March 2, 1799
authorized salvage in a prize case of one-half--in other
words, if you were the captain that seized a vessel, you
got one-half of the vessel's worth--if it were owned by
citizens of friendly countries that were recaptured after
more than four days in possession of the enemy, and we
were sort of at war with France in that period.
The American captain, under this statute,
stoutly maintained that the recapture, quote, "is in the
very words of the act." Marshall agrees. Marshall
explicitly on page 30 of the opinion agrees with that
statement--page 43 of the opinion explicitly agrees with
that statement.
But then he goes on to hold exactly the
opposite, and he says, but it has been urged by the other
side, and we think with great force, that the laws of the
United States ought not, if it be avoidable, to be so
construed as to infract the common principles and usages
of nations or the general doctrines of national law.
What Marshall ended up doing was some kind of
compromise verdict. He says, well, give the captain a
sixth as salvage, but the original ship maintains most of
its value.
And there are a lot of other examples in my
Casey article. I only got to 1806 because there are so
many Marshall cases. Marbury v. Madison, Marshall's
interpretation of Section 13 of the Judiciary Act is
squarely contrary to the structure of the act, it seems
to me, as well as the language of the act.
So I would emphasize with a little bit more
force that Marshall did not even pay lip service to a
strong textualism. What I think he did pay lip service
to consistently was the idea that the words are relevant,
the structure is relevant, but that that's not all that's
relevant. And I think an important thing I would draw,
and here we might also differ, John, is that both in
Marshall's time and particularly in admiralty cases, as
many of the early cases were, but I think we have modern
analogues, immigration law, asylum law, some of the cases
now before the Supreme Court, I would be much more
inclined to look at international norms, norms in
treaties, norms adopted in customary international law,
et cetera, when I interpreted statutes and not just
statutes like the asylum statute that are explicitly
premised upon international conventions, but other
statutes, immigration statues, as well.
Now, again 99.9 percent of the cases, we vote
the same way. I think most of us in the room would vote
the same way. We're only talking about the cases that
involve normative disconnects between the apparent plain
meaning of the statute and what seems like the normative
result preferred by the Constitution, international law,
common sense, whatever.
MR. MANNING: It seems to me that where we
would really differ is the law can be expressed in the
form of rules, and rules are going to be over and under
inclusive in relation to their background justifications;
right. So the no dogs in the park rule I think is
semantically comprehensible as excluding wolves, but the
background purposes, however you might describe them, at
whatever level of generality you might describe them,
would apply to somebody bringing a wolf into a park.
Whatever noise, disruption, safety concerns a
dog might pose, a wolf would pose a fortiori. I think
the difference between Professor Eskridge and me is that
I certainly believe that when you're trying to figure out
what the semantic or conventional meaning of a statute
is, you look at all sorts of things including
colloquialism, including rules of interpretation,
including the content of terms of art.
When a statute is ambiguous, that is to say
when the semantic meaning does not precisely address the
problem at hand, I think you can look at the apparent
background purpose, but when the semantic meaning is
clear, you cannot, in my judgment, shift the level of
generality so that no dogs becomes no dangerous animals
or no canines or no quadrupeds or no pets without
disturbing the compromise that was the foundation of the
adoption of the legislation.
And that I think is the basic difference, and I
think the only thing that divides textualists and you
could call dynamists, purposavists, pragmatists. That's
it. And it really comes down to a judgment about equity
and fairness in individual cases versus whatever systemic
benefits you believe you get from holding the legislature
to what it enacted.
That is to say to the public meaning when it is
clear of what it enacted, and I think there are very
systemic benefits that come from not helping the
legislature out of a jam; right. They're going to have
an incentive to pass statutes more clearly. They are
going to be less misleading about what they do. The
public is going to have better notice of what its
obligations are. There are all sorts of functional goals
that underlie the protection of compromise, but to me the
basic idea is that the constitutional structure strongly
favors the instantiation of compromises into legislation.
And as a matter of structural inference, I
think that's the best way to read the judicial power in
the absence of compelling evidence to the contrary.
MR. ESKRIDGE: John, I think there is--and
remember, you're the man who says an ambulance is not a
vehicle.
MR. MANNING: Yes.
MR. ESKRIDGE: Right? So here's--
MR. MANNING: No. Wait a second.
MR. ESKRIDGE: Whatever, whatever. You said
that. You said ambulance is not a vehicle.
MR. MANNING: No, I said there's a background
convention that permits it to come in--
MR. ESKRIDGE: I know but under my statute, the
ambulance is not a vehicle.
MR. MANNING: All right.
MR. ESKRIDGE: So this is the nuance, that John
is caught in this vortex.
[Laughter.]
MR. MANNING: That's actually true. I am
caught in a vortex.
MR. ESKRIDGE: To do this sophisticated legal
thing, John is going to look at tons of context, whether
you call them canons. And by the way, if you look at
canons, as both of us do, and as Nick Rosenkranz does
back in the back, if you look at canons, anything is
possible because the canons are multifarious and there is
almost no result that you cannot support by rolling out a
canon, and yet we're all committed to it.
So this is the thing, that there is a tension
between the rule of law face you want to present that
results are predictable, objective, not being driven by
judicial preferences, and the legislature can know what
it's doing when it passes its statute, that's one face.
The other face is but it's really contextual,
surprising, that ambulance actually doesn't always mean
vehicle; right. And that tricycle also doesn't,
according to Manning, mean vehicle, which was a bit of a
surprise to me. So that's the problem. And the way my
criticism of the judges, not of John, of the judges who
are new textualists, is that they are very adamant that
what they're doing is objective, neutral, complete--
that's what they say they're doing.
And yet what they're actually doing is the same
thing as the pragmatists in a lot of the hard cases.
Okay. And that's my problem.
Now, John is a little bit more out of the
closet on the contextualist stuff, a lot more, a lot
more.
MR. MANNING: Well, I do think that it is
possible to disagree about whether the semantic meaning
of vehicle includes tricycle and still claim that looking
for the semantic meaning is more objective than taking a
word--so I think the vehicles in the park statute is
deeply ambiguous, and I'm not alone in this. Justice
Holmes in a fabulous case that I'm sure that my
colleagues know very well, McBoyle v. United States, the
Motor Vehicle Theft Act.
Now, somebody--I don't know how you do this
actually--but somebody stole an airplane, and was
prosecuted.
MR. ESKRIDGE: C.f. 9/11.
MR. MANNING: What?
MR. ESKRIDGE: 9/11 was stealing an airplane.
MR. MANNING: So stealing an airplane, and I
don't know how, but the prosecutor goes to the Supreme
Court and Justice Holmes makes a judgment that this is
not covered by the Motor Vehicle Theft Act, and why is
that? Well, even though an airplane is technically a
vehicle, and this one had a motor--I guess it could have
been a glider, and then it would be a completely easy
case for me--but it's a motorized vehicle, but what
Justice Holmes says is, look, everybody knows we don't
use motor vehicles to describe airplanes. That's not
what we picture.
When we say motor vehicle, we picture a car or
a truck or maybe a motorcycle, but we don't picture an
airplane. Now, applying this criminal statute to
somebody who stole an airplane would not have caused any
kind of social disruption. Indeed, morally it would have
been quite nice to have a hook for putting somebody in
jail who stole an airplane and, indeed, it's probably
reflected a gap in the law that there wasn't an airplane
theft act, and there probably was one enacted soon after
the McBoyle decision came down.
But the fact is that you can disagree about
whether motor vehicles should apply to airplanes, but it
is possible to engage in some kind of discussion about
whether a reasonable person voting for this statute would
have understood the statute semantically in a particular
way.
Often the answer will be you can't decide, then
the statute is ambiguous, then all the stuff that
Professor Eskridge and I both love to apply when we're
interpreting statutes--purpose and policy and equity and
history and tradition and all these wonderful things--
that comes in. But once you decide that semantically
there's one answer, I believe that that's the end of the
ballgame and--
MR. MOLOT: Yes.
QUESTION: I agree that I think the places
where you really disagree are in this concept of law
existing independent of the facts, and that there is a
clear meaning without actually applying it to the facts,
and then I think that pragmatists would argue that until
you actually apply the law to the facts, you can't really
identify whether there's an ambiguity or not.
And so my question is it seems the whole
concept of the law existing independent of application to
the facts would almost suggest the courts should be
issuing advisory opinions without any sort of real
plaintiffs or defendants in front of them telling
everyone what the law is because there is this plain
meaning that's, you know, readily apparent to everyone
and the facts are completely irrelevant to that exercise.
MR. MOLOT: Just so everyone can hear, I take
it it's a question for Professor Manning, but the
position being I guess what you're saying or
characterizing Professor Manning as saying that you're
giving law meaning without applying it to the facts, and
how would you respond to that?
MR. MANNING: I mean I think I'm applying it to
the facts. I mean I think if somebody comes to the
border of a park with a coyote and I'm thinking to
myself, all right, it says no dogs in the park, and
socially does this law mean, does this word mean, include
coyote? Well, no, so you can come in.
Now, you know, am I going to apply the law that
way? You know I think so. I don't like it, but I'm
going to apply the law that way. Am I applying the law
to the facts? I am, but the way I'm applying it is by
trying to ascertain the semantic meaning.
Now, if by am I applying it to the facts, am I
applying it in a way that I think either a reasonable
legislator would want, I think the difference between
what Professor Eskridge does and what I do is I ask how
would a reasonable person understand these words as
applied to these facts, and I think Professor Eskridge
might ask how would a reasonable person, maybe reasonable
legislator, solve this problem as applied to these facts
given this statute; is that a fair characterization?
MR. ESKRIDGE: Yeah, except I think they
converge. I think the two--how a reasonable person would
apply this statute to these facts I think converges at
the latter question. That actually is my point. So
you've stated the two things nicely, and I'm arguing they
converge in the hard cases, and here's the other thing.
The more emotionally normative the issue, the more they
unconsciously converge.
So in Title VII, they use the word
"discriminate," and they don't define it, and so Justice
Scalia feverishly believes that don't discriminate means
no affirmative action, and I believe he sincerely
believes that as a matter of etymology and linguistics
and the whole business, but I think that's inescapably
intertwined with his normative skepticism about
affirmative action. Ditto for Justice Thomas, and the
opposite for Justice Brennan, who I think plausibly
believed that discriminate was more open textured, that
it could include something that was not malignant or
maligned or badly inspired, and a lot of people who favor
affirmative action sincerely think that discriminate is
capacious enough to include it.
So I think the descriptive and the normative,
the higher voltage the normative issue, I think the more
they merge, and the more sure one is that one's view is
actually a description and not just my view.
MR. MOLOT: In the back.
QUESTION: Professor Manning, could you respond
to the argument, at least as I hear it, that there really
are truly no neutral principles of judging, and a lot of
this debate really comes down to outcome determinative
type of philosophy. I even think when the country
formed, the whole idea of whether or not to centralize
the government or decentralize it was driven by the
issues of the day.
You know even today, you know, the abortion
debate, some people say send it back to the states,
that's an appropriate forum would be. People say, well,
you know, Congress should now get involved, the very same
people, a lot of them who want to send the abortion
debate back to the states. So I wonder, you know, as a
political theory, is there really truly equal principle
for judging or is all this just a proxy for some of these
other controversial issues?
MR. MANNING: Well, I think that for most
statutes, there is a wide range within which judges can
make decisions on the basis of a variety of factors
including ultimately the judge's view of, you know, the
judge's value judgment; right. And usually I think that
value judgment is not untethered; right. It's some value
judgment about how to apply the statute in a way that
makes sense of the scheme or makes sense of the apparent
objectives. But it's at a fairly high level of
abstraction and generality and so people could come out,
as Professor Eskridge suggests, people could come out
differently based on the presuppositions that they carry
with them to the decision.
I think that's true of a lot of cases. My case
is a more modest one, and I think it's why in the end one
of the things that we're trying to do here is to figure
out how we differ, and that's the law does set some
boundaries, and I do believe that judges are capable of
and should aspire to respecting those boundaries when
they are clear, and so it seems to me that can you have a
sort of consistent neutral principle as jurisprudence, I
haven't thought enough about it to know if I believe that
that's something that we can have in practice or whether
there is some way of implementing it so that we should
aspire to it or--that's a question that's sort of
tangential to what I do.
I'm more worried about boundaries, and I do
believe that there are boundaries, and I do believe that
legislatures can choose rules or they can choose
standards and that when they choose rules, when they
choose something that's more specific, that courts and
administrators ought to respect it, and so maybe the
cases that I'm worried about you'd say are the boring
cases; right. So if Congress passes a statute that says,
OSHA, you should go out and regulate polyvinylchloride in
the workplace to reasonable levels.
I mean there is no statute that specific, but
let's imagine they adopted that statute, and then a few
years later, some official in OSHA discovers that benzene
is hazardous in ways that are similar to
polyvinylchloride. I don't believe--I don't think this
is a true hypothetical, but it's a different chemical,
different chemical properties used in different ways in
industry, but very similar mischief to polyvinylchloride.
Well, should the EPA be allowed to use the
polyvinylchloride statute to regulate benzene? Well, my
answer would be of course not because whatever compromise
caused people to come up with the idea of
polyvinylchloride, that's how the statute is limited.
It's very clear. Even if another chemical comes up with
very similar chemical properties, Congress has expressed
itself in very clear and precise terms. It used a rule
rather than a standard, and you know we're stuck with
that. That's the compromise.
They authorize the government to disturb
people's liberty, property, but they did it on conditions
that were very clearly demarcated and textually
comprehensible, and I think that it's possible to aspire
to having judges and administrators live within the
boundaries set by the text.
MR. ESKRIDGE: I'm going to agree with John on
this. Let me just say this quickly. I think there are
three constraints on judges, and there should be. One is
the textual stuff, which I'm 99.9 percent, and the reason
I agree with you, John, on the expert fee statute, you
said before that statute and after that statute, all the
statutes had said counsel and expert fees, and that's
persuasive enough to me. Congress left it out. Maybe it
was a mistake. Unless there's strong evidence of that,
I'm going to go with you and it doesn't include that in
that particular statute.
Second limit on judges, I think, is legislative
purpose, and that's why I come out differently from you,
John, on the tricycle thing, is that I do agree with the
faithful agent theory. I think they're partners and
agents. It's like the Certs debate. Remember the breath
mint thing. They're both, and for the tricycle, I think
the role of a judge is to internalize the scheme and
project that the legislature had said, in effect, and if
that project is a safety project and tricycles come
within the definition, then I think they fall into the
statute, and I think it's as simple as that, and I think
that does constrain judges.
I do not want to arrest the little girl or the
little boy, but I think it falls under the statute and I
think that the gendarme can regulate that in certain
ways. And I wouldn't sentence the child to jail or
anything. It goes to sentence.
And then the third thing is these larger norms,
that international law is not completely open-ended. It
was certainly not in Marshall's day; it's not today.
Treaties are fairly clear once we've ratified and others.
The Constitution gained some degree of clarity through
judicial interpretation. You can look at a body of law
and see in any given point, generally speaking, what
constitutional law is, the direction it's going, what
international law is, da-da-da-da.
And I think those are limitations on judges,
and I think that's good. So to say it's normative does
not mean that judges are unconstrained. They're not
accountable to interrogation for the proposition that
you're just implementing your own parochial view of
affirmative action, whether you're Brennan or Scalia, but
instead are you really applying judicial kinds of
materials to resolve the difficult etymological questions
of what the word "discriminate" means or statutory
questions.
MR. MOLOT: Pam.
QUESTION: For me a lot of the way this plays
out in practice--I write briefs--is how much you put
under your first heading, which is we win under plain
meaning. And I feel that maybe 15, ten years ago, those
tended to be very short sections, and it would be mostly
just a literalist paragraph, you know, vehicle says this
in the dictionary and we win, and now more and more you
get, you know, the dictionary definition, that here's the
way, all still under Roman Numeral I, here's the way the
word is used in other statutes, here's the way it's used
in context in this statute, here's why this leads to a
sensible policy resolution, and sometimes even
legislative history, it's consistent with legislative
history, and you're still in Roman Numeral I--this is the
plain meaning of the word.
And I guess my question is does that mean that
Professor Manning is winning because now we're all plain
meaningists. We know that if we want our argument to be
taken seriously we have to say it's plain meaning.
Or does it mean that Professor Eskridge is
winning because plain meaning, whatever, you can put
anything under that? Or does it mean it really doesn't
matter because as a practical thing, we've kind of
resolved this? Everybody knows what we're doing or
judges know what we're doing, and who cares? That's my
question.
MR. ESKRIDGE: You know from a law professor's
point of view, the answer is both. And law professors
always claim we're both winning. I think there are two
interesting ironies here.
MR. MANNING: I'll go with that.
[Laughter.]
MR. ESKRIDGE: No, but I think that's the
answer, but here are two ironies that I want to
underline. One is that I think it's a healthy trend for
attorneys to read the statutes carefully and there is an
undisciplined--when I was in private practice at Shay &
Gardner here in town, we ignored the statute and went
straight to the legislative history, and we argued it
relentlessly, and we won with that.
And that was wrong to ignore the statutory text
as we tended to do. I think it's like Scylla and
Charybdis. So we were at Scylla, but I think Charybdis
is just as bad, that if the focus becomes a fetishized
dictionary shopping, which you see in town now, and
structure shopping, which you also see in town now, then
there's a danger the statutory interpretation becomes a
bead to game, and it becomes a game of cleverness, and in
the game of cleverness, we lose sight of the evolution of
statutory policy.
And we lose sight of, particularly if you
exclude legislative history as some do and some don't,
and, you know, in town that remains a debate,
particularly if you lose sight of here is their project,
here is the history of what the agency has been doing,
because, remember, most of the interpretation here is by
agencies, right, and so courts are second guessing, you
know, and here is why the agency is doing it this way and
here is the feedback they're getting from Congress, and I
think that's very complicated. I think it's very
normative, and one other norm for judges is, I think,
they have to defer to the agencies as well as Congress in
terms of how does all this work out.
I don't think judges should be so trigger happy
to intervene and substitute their judgment even when it's
a textual judgment sometimes. Okay. So I think that's a
danger of fetishizing the dictionary word choice and even
structure.
And by the way, the first structuralist was
John Marshall. He was the one who I think even today is
the most brilliant deployer. There has been no better
deployer of statutory structure and no more devious
deployer of statutory structure in American history, I
think, than John Marshall. He didn't shop dictionaries
so much, but he was a brilliant structuralist, even when
you disagree--brilliant, brilliant.
MR. MOLOT: Yes, Gary.
QUESTION: Looking at the historical record,
who, if anybody should have the burden of proof? it seems
to me in your debate, it seems that you're saying, well,
the way that judges dealt with statutes before the
Constitution was pretty much the same as after the
Constitution. Nothing really changed. Professor Manning
seems to be saying there's a huge change, and if you look
at the historical record, at least if we argue that, if
there's going to be a huge change, people are going to be
saying, look, there's a huge change here, but if people
assume that it's going to stay the same, they won’t
necessarily say, oh, nothing is going to change. I mean
is there a burden of proof there?
MR. ESKRIDGE: Well, Chief Justice Rehnquist
when he was an Associate Justice invented the dog doesn't
bark canon. And he said it's a canon I think of
statutory interpretation that when something big is
happening, it's like the Arthur Conan Doyle Silver Blaze
story. And the dog is there, the dog will bark; right.
Now, Justice Scalia doesn't like that canon--
MR. MANNING: I hate that canon, too.
MR. ESKRIDGE: Justice Scalia doesn't like it,
but the majority of the court cites it all the time. And
Scalia usually gives as a counter cite Nero's dog, who I
think did not bark while Rome was burning. That's his
counter cite.
MR. MANNING: There you have it; right.
MR. ESKRIDGE: So I completely agree with you
and he doesn't. Right? Don't you? Surely not.
MR. MANNING: My view on this, what I set out
to do when I wrote the first long impenetrable article of
what ended up being a trilogy between the two us--
MR. ESKRIDGE: A trinity.
MR. MANNING: Exactly--was to show that
Professor Eskridge had not in some earlier work met his
what I regarded as his burden of persuasion, and the
reason that I believe that the burden of persuasion is on
Professor Eskridge is that for many, many years, the
court has and you could call it pretended or stated or
acted as though what it is doing is deciphering commands
and even when it is departing from the text of a statute
in order to implement its spirit or purpose, it is doing
so because it will more faithfully capture the intentions
of the legislature.
All right. So if you believe that that is the
faithful agent theory, then somebody who is trying to
show that there's a partnership model bears the burden of
persuasion. Now, you could make the argument the other
way, and being a law professor, I'll make the argument
against myself now, the argument would be, look, the
courts may have talked the language of faithful agent,
but maybe up until very, very, very recently, what they
have done in practice is stuff that looks very similar to
what English judges were doing; right.
That's what Holy Trinity Church v. United
States does, and that's Weber v. Steelworkers does. It's
what, you know, a whole host of cases, and so people who
want to argue for the faithful agent theory and against
spirit or purpose based interpretation have to bear the
burden of persuasion.
Who's right? We can't tell you. And, you
know, I don't think anybody can say, but that's our--I
think I've fairly stated our positions.
QUESTION: Professor Manning, a little while
ago, if I heard you right, you said that once you
determined a term was ambiguous, that you and Professor
Eskridge were going to do the same kind of thing, you
were going to look to the same type of sources. I wonder
if Professor Eskridge would agree with that statement,
whether you, in fact, would go about it the same way?
And the second part of the question is if that
is true, how do you decide when a term then is ambiguous
and you go do that? In your hypothetical, you use a term
which has a fairly concrete meaning, yet we can talk
about whether the the coyote and a dog is a dog or a
coyote, but--
MR. MANNING: Yeah, there are going to be
ambiguities, sure.
QUESTION: --you know, they are common--in the
case of a vehicle, it's a little less concrete, a little
more ambiguous, and when we get to discrimination, or the
use some of the other hypothetical, you used the word
"reasonable" in your regulatory case. When we get to
there, now we're out here. Where do you draw that line
in defining ambiguous so that you can do that?
MR. MANNING: You can't. You can't. I mean
it's a matter of social--I mean what the standard line is
in the scholarship is that a text is clear in context as
applied when most people would agree on its meaning.
You know so you have nine judges. That's not a
very big sample of people, and they're going to disagree
about whether most people would agree on its meaning, and
so you're going to have disagreements about ambiguity. I
don't think that disagreements about whether a statute is
ambiguous is proof that it's ambiguous, but I think we
would both agree, there's no metric for determining
clarity versus ambiguity.
I will say--and I'll turn it over to Professor
Eskridge in just a second--I will say that I think we
would use pretty much the same material with one
exception, although even with respect to that, it might
be a question of degree. I basically wouldn't use
legislative history at all. You know maybe I would use
it in the same way I would use a persuasive law review
article or persuasive brief to clue me into facts about
the world, about the extra-legislative context that I
might not know.
But in terms of using it as an account of the
understanding with which people in the legislature
enacted the legislation, I would not credit it at all,
and I'm not sure how much--
MR. MOLOT: Professor Eskridge, you'll have to
have the last word.
MR. ESKRIDGE: Yeah, the way I would say
ambiguity is that I think ambiguity is both social and
normative. So the question whether a tricycle is a
vehicle I think will be quite clear in some normative
context and quite unclear in others. Okay. So it's both
social and it's normative. It depends upon the goal, the
policy.
And in the criminal statute, the role of
lenity, you know, which we both subscribe to, that one
reason to go John's way on the tricycle, for example, is
the rule of lenity. If there is any doubt, you should
apply the prototypical, the core meaning of vehicle,
which might be more like motorcycle, truck, ambulance--
right--et cetera--rather than tricycle, and that also
could support you on ambulance even though I do think
it's a prototypical vehicle. Well, anyway, that's the
point about ambiguity.
On legislative history, I would look at
legislative history. John is right. We do differ on
that. We agree that legislative history is not
authoritative in the way that judges and law professors
used to say before the John Manning article, but I think
legislative history has three different kinds of utility.
And I think judges ought to look at it.
One is factual. So we're in agreement on that.
And I think the meaning of terms, you can often see how
did these legislators use the term "vehicle" in their
debates. How did they use the term "labor" in the Holy
Trinity statute? So I agree with John on that. But I
would also look at legislative history for statutory
purpose.
Generally speaking, there would be a fair
amount of agreement, and if there's not, then it's not so
useful, on what is the core purpose of the statute and
how much did Congress really want to sacrifice for this.
So you can tell both purpose, and maybe purposes, and
intensity from the legislative history. And I do firmly
agree with the honest agent or the faithful agent model
that you are not a faithful agent unless you understand
and try to understand what is their project, what are
their assumptions, what are their norms, how much did
they want to pursue them? And I think you get more
traction usually by looking at the legislative history.
And then thirdly, I think you can discern from
the legislative history some of the deals that were made.
You have to read it critically. You have to read with an
appreciation of strategic behavior, the whole business,
so this is the least reliable, I completely agree, but
there is goes to weight. It's admissible and it goes to
weight.
And if you argue, if you want to argue judges
can't do that, I will say I completely disagree, but I
think you have to be a really smart judge. You read
opinions by Judge Posner and Justice Stevens to mention
simply two of the more brilliant ones, and those people
are able to do brilliant and illuminating exegeses of
statutory deals and legislative history.
And I think that is useful information, not
always dispositive, and maybe not even trumping text,
even ambiguous text. But I think from the point of view
of both the pragmatist and the faithful agent, that this
is relevant information for a cloistered Article III
judge to have.
MR. MOLOT: We're over our time. Join me in
thanking Professors Manning and Eskridge.
[Applause.]
[Whereupon, at 2:10 p.m., the panel discussion
was concluded.]