5.2 “Faithful servant” through an employment-law lens

(Second in The interpretation of statutes and the denial of judges' power series.)

In the preceding entry I extrapolated purposivism to show it stands for more responsiveness to the legislature, textualism, less. The next analogy shows that purposivism conceives of a relationship more like an employee (Servant) relationship, whereas textualists create a relationship between courts and Congress like that between an employer (Buyer) and independent contractor (Contractor). The parallel suggests conclusions about the relations between courts and Congress each doctrine envisions.

By Servant relationship I will mean the status of an employee at will, the status enjoyed (literally, not) by the great majority of American workers. An employment-at-will relationship exists whenever an express employment contract doesn't, creating a status allowing Servant's discharge "for good reason, bad reason, or no reason at all." As the "at-will" formula implies, Master expects Servant will work his will. Having the power to demand Servant do as Master wishes, even if this seems to require reading Master's mind, Master wants to realize his actual purposes, even if they contradict what he inscribes or verbalizes. Master gives Servant orders as means to ends, and, while purposes are subject to sublimation, the substitution of a wish's expressed misdescription for the wish itself undermines its fulfillment. If Master tells Servant to take out the garbage, Master doesn't expect Servant, Jonathan, to arrange a date with Master's competitor, Jacqueline, whom Master, in a competitive rage, had yesterday defined as "garbage." For the employer to delight in obedience to his words when they contradict his will would be perverse when generalized. Master may yet fire a Servant who goes too far beyond Master's words, even when Servant satisfies Master's wishes. Master wants to avoid the risks attending a speculating Servant, so Master will impose a more textualist regime on Servant when Master distrusts Servant's judgment. Master's "textualism" never comes close to wanting Servant to ignore Master's purposes.

The relationship between agent, text, and the principal's purpose differs when Contractor accepts a job. Buyer pays Contractor to satisfy a narrow intention expressed in a contract, often written, its interpretation textualist. Contractor doesn't have to gratify the wishes of Buyer; he need only satisfy the contract's terms. Why then does an employer choose to be Buyer? In the prototype situation, the employer lacks the specialized knowledge to supervise a Servant, to whom he would anyway have to grant the autonomy of a Contractor. The Buyer - Contractor relationship is tailored to high employee autonomy because it compensates employer for reduced control by shifting various duties to Contractor. A homeowner can sue a building contractor but not a Servant for misfeasance, and third parties can sue the homeowner as Master, when they cannot sue homeowner Buyer. The pattern shows that the employer prefers the Master-Servant relationship because employer charges for forgoing it by requiring Buyer to assume duties formerly employer's.

A textualist court stands to the legislature like Contractor to Buyer, the text of the statute replacing the job-contract's terms. This is a more powerful position than occupied by a purposivist court, which mimics a Servant by making the legislature Master.