5.9 The common law of statutory and constitutional construction

(Ninth in series: The interpretation of statutes and the denial of judges' powers.)

Can we really avoid a deliberative theory? Perplexity comes from the apparent incoherence of interpretation without defined constraints. "What are we searching for when we construe a statute [or a constitutional provision]," asks Justice Scalia in Common-law Courts in a Civil-Law system: The Role of United States Federal Courts in Interpreting the Constitution and Laws. From the perspective of a legal formalist like Justice Scalia, the absence of an ultimate objective — of the whole point of the interpretive enterprise — is deeply disturbing and fatal indictment of contemporary jurisprudence.

Justice Scalia claims that the common law method of developing the law is restricted to certain traditional fields like torts, contracts, and property. The common law has become irrelevant to the bulk of legal rules, and, today, the courts must construe statutes, instead of creating rules of law in common-law fashion. Even assuming the dubious notion of statutory interpretation without rule creation, Justice Scalia refrains from analyzing interpretive-principle creation — whether canonical or local, express or tacit.

Justice Scalia and most theorists ignore the ongoing common-law evolution of interpretive rules because they think interpretive principles and small-scale inference patterns don't bind as precedent, but terming the interpretive methods narrow, fact-specific, and defeasible would be more precise than terming them nonprecedential. Commentators who say interpretive methods lack even subjective precedential force conceive "methods" broadly, as though these must apply with the same scope as deliberative theories of interpretation, like Interpretivism and Originalism: theories that describe process, rather than outcome.

The deliberative theories bear the same relationship to narrow-scope and defeasible principles of interpretation as statutory law bears to the common law. Both replace tentative standards amenable to piecemeal evolution—having determinate rules and a reliable evolutionary mechanism—with a method perfectible in principle and dependent on consciously taken singular acts, which are sometimes broad in impact. Justice Scalia, exponent of codification, is consistent in also embracing the interpretive analog of codification, broad deliberative theory of interpretation; but the principles of statutory and constitutional construction are subject to common-law development because most judges resist interpretive theories.

5.3 Lessons from the civil law

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

American doctrine of government division is based on two theories: separation of powers and checks and balances. Often presented as complementary, the two contain tensions, even contradictions, for government branches can check each other only by exercising alien functions. The executive checks the legislature partly by encroaching on legislative terrain with the veto power. Congress checks the executive by disapproving appropriations for executive functions, intruding on their exercise. Congress checks the judiciary by over-ruling judicial interpretations by writing new laws re-interpreting old ones. The executive checks the judiciary because its discretion in execution contains more than a modicum of interpretation.

The courts interpret and construe the law to check and balance both the legislature and the executive. The U.S. Constitutional system envisions the courts an active participant in the tripartite division of power. A judiciary rigorously limited to applying the law wouldn't satisfy the constitution's basic requirements, as wouldn't an executive limited to ministerial acts. American constitutionalism here conflicts with democratic ideology: the reason American judges are both respected and reviled. This conflict between American constitutionalism and democracy provides the final analogy for understanding what purposivism and textualism imply about a functioning government, before we look at the conflict itself more directly.

We seek the consequences of this intra-ideological conflict by taking a natural experiment where legislative supremacy is uncontradicted by checking or balancing: the civil-law systems of France, Italy, and Germany. The civil-law's version of separation of powers arose as doctrine after the French Revolution vacated all encroachments on the legislature's exclusive right to legislate. The civil codes aspired to certainty and completeness; interpretation was to be avoided, but, if necessary, the courts were supposed to ask the legislature for guidance. Interpretation, alas, was the norm; despite best efforts, the cases arising are seldom anticipated when legislation is passed. The civil law developed institutions where the courts shamefacedly interpreted the law and unofficially even established precedents. A typical civil code contains instructions to interpret the law based on text and legislative intent; if uncertainties remain, by the overall system of government; and, as last resort, how the judge would decide the matter acting as the legislator.

The civil-law system originated under mandate to strip judges of all real power. Even today, civilian systems view judges as bureaucrats subordinate to the legislature. What powers of interpretation accrued to judges at civil law resulted not from their influence nor the connivance of ruling ideology but the foremost practical necessity, workload reduction. A self-interpreting law is unwritable; the civil law conceded on judicial interpretation, but the civilian system has no imperative to balance legislative power. The original French civil-law system approached the thought experiment at this series' start, subjecting the courts to present legislative purposes. When the system evolved as needs of state expanded, the courts remained under mandate to obey legislative intent, and the courts in civilian countries consult legislative history freely. The civil-law system, unambivalently committed to legislative supremacy, evolved a purposivist approach to statutory interpretation.

Next, what the American system of checks and balances means for statutory interpretation.