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but terming the interpretive methods narrow, fact-specific, and defeasible would be more precise than terming them nonprecedential.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.

5.8 Constitutions are inherently meaningless

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

The present theory expounds a manner of Constitutional construction as a trend issuing from the Constitution's structural features and their central role in using the Constitution as a government blueprint. For the constitution to produce a workable government, it must cause, not recommend, obedience to its structural design and the goals normally served by these design features. This theory differs from the usual run of theories, such as Originalism and Interpretivism, in absence of mandate. The only thing to be said for relying on this structure-function theory of interpretation in performing interpretation is that it will help you pick the interpretation with some likelihood of being deemed right in the long-term. Arguments tend to gain force to the extent that they line up with the predictions the theory makes. Described is the only theory needed to solve the problem for a theory of interpretation, the interpretive enigma.

Not merely the only theory we need, it is as much of a theory as we can have. The constitutions of some jurisdictions, containing clauses instructing on the manner of interpreting the constitution, show why we can't have a deliberative theory. Express provisions often instruct to look first to the ordinary meaning of the terms and stop there in the absence of ambiguity. Interpreters of constitutions without explicit provision for their interpretation usually arrive at this conclusion, and it doesn't rescue them from interpretive conflict; this provision could increase interpretive-method differences because it causes an explicit focus on a particularly subtle meta-theoretic issue. Whether it increases or decreases the interpretive variance, it doesn't eliminate or trivialize it. Any written standard must be interpreted. It is fundamentally in a position no different from other constitutional provisions.

Sometimes theorists maintain that a method of interpretation is implicit in having a written constitution. Since the constitution enacts words for the general public obedience, these theorists say, having a written constitution implicitly means using a textualist method of interpretation, but a text can't adequately dictate methods to interpreters. A common rejoinder points out that the people enacted the text, not some associated meanings or not the intent behind the text, and so, if the Framers had wanted the country to look to their motives, they could have said so in the text. The rejoinder begs the question. Provisions were enacted; but to construe the voting ritual as an endorsement of the text may seem natural, yet it is logically arbitrary.

Why does it seem natural to interpret a provision as equivalent to its text? Not because in interpreting cultural products in general we impose these limits. When a drillmaster counts the march beat, the numbers or other sounds he uses are beside the point. To interpret is to assign meaning relative to current purposes channeled by habit; interpreting laws by the public meaning of their text is natural because of myriad legal habits. A constitution means nothing except in a culture prepared to receive it, and it means what it does only because of the manner of reception given by habits of thought.

If a culture prepared to interpret the constitution preconditions its playing an actual governing role, a constitution will produce workable government only to the extent that interpreters are impelled to choose an interpretation that reliably ensures sufficiently coherent development. The constitution's actual provisions must cause their "correct" interpretation by means other than direct mandate or implicit direction.