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Beyond Bork and Scalia: Interpretation by Principle

The dilemma at the heart of the 1985 United States v. Locke case is notable because it is both ridiculous and extremely important. The sporadic logic of Justice Marshall in his majority decision on the case is illustrative of the need of a theory of legal interpretation that can consistently integrate the text and intent of the law and precedent involved. The case itself was brought about by an odd situation: the appellees held a mining claim that the Federal government required to be renewed annually “prior to December 31,” which the claim-holders understood to mean to set a deadline at the end of the year. In filing on the 31st, their claim was considered too late to renew and therefore abandoned.1

The decision by the US Supreme Court acts as an example of how courts can and do apply both strict textualism and a broad conception of original intent in the interpretation of law, sometimes in the same paragraph, depending on which best supports their conclusion. This seems to be in accordance with Justice Marshall’s “do what you think is right and let the law catch up” philosophy of legal interpretation.2 But for those who think legal interpretation should be in some way connected to the law, the problem remains of how we interpret law.

If law is to meaningfully exist, it must cohere, to some degree, with the principles of natural law, at least in Lon Fuller’s sense of the term. Fuller points out that it’s the “internal morality of the law” that makes it possible for most people to accept the law as a standard on which they can order their affairs.3 If interpretation of the law strays too far from the law, the people living within the jurisdiction of the law are being ruled by the judges, not by the law. People who are no longer living as subjects of law cannot know with much confidence if they are violating the law or whether the law protects them from others. They are subject only to the law of terror.

As a matter of the practical, day-to-day functioning of society, there need to be deadlines in certain circumstances, which should enforced within firm deadlines, even when it seems arbitrary. As Justice Marshall holds, “filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced.”4 In this finding, Marshall is, against all odds, a strict textualist.

But elsewhere in his jurisprudence and this opinion, he interprets on the basis of original intent saying that that fifth amendment property rights are not violated when the Federal Government’s taking of property “was one they [the property owner] could have avoided with minimal burden.”5 Marshall acknowledges that the intent of “applying FLPMA’s filing provisions to claims located before the Act was passed” is “to rid federal lands of stale mining claims.”6 The appellees’ claim was clearly not stale, they were actively working it on a scale of about a million dollars a year, but Marshalls decision isn’t concerned with the obvious implication that the appellees’ loss of their claim falls outside the intent of the statute.

Textualists, such as Antonin Scalia, might argue that a poorly and/or ambiguously written statute should be seen as the fault of the legislature and that the duty is on them to write the law clearly and correctly and that it is not the duty of judges to “fix” the law by rewriting it via “interpretation.” To some extent, arguments like this have merit, but they also have limits. Language is ambiguous by its very nature and a law written to cover every situation would require more deliberation and paper than exists in the world.

We would like citizens to test the limits of laws and for badly written laws to act as a black mark on the records of their makers, but citizens cannot be expected to constantly play chicken with the legislature. Individual citizens often have small costs for erring on the side of the harshest interpretation of a law, but potentially catastrophic results for testing the limits of interpretation. But on a broad scale, ambiguously or poorly written statutes damage the rule of law as a whole and can even be a deliberate tool of the government to incrementally encroach on citizens’ rights.

What principle should the courts apply to legal interpretation? If law is a set of principles, perhaps courts should be trying to discover those principles in the text and intent of the law. An approach like this could avoid the arbitrariness that would come with strict textualism, the strange tangents that rigorous attempts to discern original intent might find, and most importantly, would preserve the rule of law.

The principles we draw out from the text of the law and the context of its framing, can and should be tested against other theoretical situations to discern whether those principles are compatible with other principles of law, and more importantly, can test whether we’re drawing the right principle out of the law in the first place. For example, the Supreme Court found in United States v. Locke that the relevant principle within the FLPMA was that failure to comply with the textually enumerated rules and deadlines “shall be deemed conclusively to constitute an abandonment” of a person’s property, which is typically protected by the fifth amendment’s due process and takings clauses.7

Would we allow this principle to be applied to other constitutional rights? Would we allow, for example, a state to require citizens to file a “security from search” notice on any property that they wished to be protected under the fourth amendments, and that filing that notice late “shall be deemed conclusively to constitute an abandonment” of their right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures? Would the same apply to fifth amendment, or first amendment rights? In the case of all these other rights, we have established that some positive action must be taken by an individual to waive a right. The Supreme Court has even found, in Miranda v. Arizona (1966), that the government has a duty to give an individual a “full and effective warning of his rights” before the government can consider those constitutionally enumerated rights to be waived.8

In using the Miranda v. Arizona example, I have applied another principle in a way that might test and refine it. The principle expressed in Chief Justice Warren’s decision in Miranda seems to be that a constitutionally enumerated right also carries the protection of requiring the government to give a meaningful explanation of a right and what it means to waive it before the government can consider a right waived. That seems to express the principle accurately and with the correct level of specificity, but it is perfectly possible, even likely, that I have erred in some detail, and that’s what makes legal interpretation a legitimate philosophical exercise.

In arguments concerning original intent interpretation, the problem comes up that in looking for intent we often find ourselves trying to psychoanalyze the writers and rule based on mental states of the legislators when they wrote the text. This isn’t as necessary when we instead are looking the principles the text are intended to convey. When there is a disconnect between the text and the intent, this should be understood as a flaw in the text of the law, caused by the disconnect between the principle the text is intended to enact and the limitations of language, time, and paper.

Another criticism of intent, particularly in Constitutional interpretation, is that the general mindset of its framers doesn’t extend to certain applications of the law. Many of the framers of the first amendment might not have intended those of African descent to share in the right to free speech, so does that mean that an original intent interpretation of the Bill of Rights would be hopelessly discriminatory? Perhaps, but an interpretation based on principles doesn’t have to be, because a principle, correctly articulated, is clear in its scope.

The infamous Dred Scott decision, for example, held that the rights enumerated in the fifth amendment did not apply to people of African descent and that those people could be “property” for purposes of the fifth amendment’s clause against takings of property. In the modern day, in which we and our amended constitution have rejected the idea that people are property, and that people of African descent cannot be citizens under the protection of the Bill of Rights, does that make the fifth amendment racist bunk? An original intent interpretation could say yes, but if we examine the principles involved, this clearly is no longer the case. The Dred Scott case takes the perfectly reasonable, constitutionally enumerated that the government shouldn’t steal citizens’ property and combines it with the erroneous principle that people of color are property and cannot be citizens. When we reject the later principle, the former still stands.

A legal principle should be as narrowly defined as possible without importing another separate principle into itself. If a principle is too narrow, that may mean that it is a mess of principles of various degrees of legal validity that need to be untangled. If a principle is defined to broadly, it no longer operates as a principle and instead as a license for rule by judicial fiat. For example, if that principle is a blanket right to “privacy,” it could be broadly applied to all sorts of activities that might fall under privacy, like the right to consume methamphetamine, the right to physician-assisted suicide, or even the right to define and act on “one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”9 But whether this overly broad principle of a right to privacy is applied to any of these cases will depend on the personally held political opinions of the judges, and the principle will cease to act as a principle.

Among the reasons there are limits placed on Federal powers in the United States Constitution is to limit the degree to which the lives, liberties, and property of citizens are endangered by arbitrary rules. That might be the principle behind the Constitution itself, the principle on which all others rest. Law is tasked with fairness, which is why it requires sound principles behind it, but it is also tasked with soundness and practicality, which is why its goals of fairness and justice must be dealt with by discovering, enshrining, and refining those principles that support them.

Written June 2022

Endnotes:

  1. United States v. Locke, 471 U.S. 84, 84-85 (1985). ↩︎
  2. Deborah L. Rhode, “Letting the Law Catch Up,” Stanford Law Review vol. 44, A Tribute to Justice Thurgood Marshall (Summer 1992), 1259-1265. ↩︎
  3. Lon Fuller, selections from The Morality of Law, in The Philosophy of Law: Classic and Contemporary Readings with Commentary, ed. Frederick Schauer and Walter Sinnott-Armstrong (Oxford University Press, 1996), 27. ↩︎
  4. United States v. Locke, 471 U.S. 84, 100 (1985). ↩︎
  5. United States v. Locke, 471 U.S. 84, 100 (1985). ↩︎
  6. United States v. Locke, 471 U.S. 84, 100 (1985). ↩︎
  7. United States v. Locke, 471 U.S. 84, 100 (1985). ↩︎
  8. Miranda v. Arizona, 384 U.S. 436, 445 (1966). ↩︎
  9. Planned Parenthood of Southeastern PA. v. Casey, 505 U.S. 833, 851 (1992). ↩︎