by Scott Soames
In what follows, we will look at two current dramas, one involving a struggle between the judiciary and the other two branches, the other pitting the executive against the other two. I will, for concreteness, focus on the forms the struggles are taking in the United States.
JUDGE-MADE LAW: NECESSARY BUT LIMITED
The first problem to be investigated is often discussed in terms of the distinction between judicial activism and judicial restraint. Thinking of the problem in this way invites one to imagine that the issue is how much the nondemocratic judiciary encroaches on the democratic legislature. The issue has arisen because recent decades have seen many important issues about which large proportions of the population hold strong opinions removed from the normal give-and-take of democratic politics by Supreme Court decisions—prayer in school, sexually and racially integrated education, racial, gender, and ethic preferences, abortion, definitions of and legal requirements on marriage, religious symbols on public property, the presence or absence of restrictions on various forms of free speech, including contributions to political campaigns, and many other matters.
This “activism” has now reached the point at which certain instances it are criticized by the political left, while others are criticized by the political right. This is one sign of something we should have known all along. The real question is not how active the Court is in striking down legislative acts. The question is, On what basis does the Court have the right to do so, and what general principles should guide it when it does? Our first task in answering that question is to articulate a conceptual framework for understanding the proper role of the American judiciary in interpreting the law and applying it to the facts of cases brought before it.
Section 1 of Article I of the Constitution of the United States says, “All legislative powers herein granted shall be vested in a Congress of the United States.…” To take this seriously is to recognize that neither the courts, the executive, nor the regulatory agencies are authorized to make laws. This implies that the first task in judicial interpretation is to determine what a law says, asserts, or stipulates. Saying, asserting, and stipulating are speech acts. Each involves taking a certain stance toward the content expressed by a use of language. To say or assert something is to commit oneself to that content’s being true. To stipulate is to make it true by asserting it. For a proper authority to stipulate that the speed limit on highways is 60 miles per hour is for the authority to state that the speed limit is 60, and for the act of making that statement to be a, or the, crucial factor in making what is asserted true.
To discover what the law asserts or stipulates is to discover what the lawmakers asserted or stipulated in adopting a text. As with ordinary speech, this is sometimes not a function of linguistic meaning alone, which is sometimes contextually incomplete. Consider, for example, the sentence ‘I am finished’. Although grammatically complete, it lacks a constituent identifying what was finished. Since it is semantically incomplete, it must be completed by the nonlinguistic situation of use, the larger discourse, or the presuppositions of speaker-hearers. ‘She is going to a nearby restaurant’ is similar. Nearby what? Our present location? Her present location? A location she, or we, will be visiting next week? It depends on context. Since there is no end to the possible completions of utterances like these, to think of these sentences as ambiguous is to think of them as having indefinitely many meanings, arising from indefinitely many preestablished linguistic conventions. But there is no such multiplicity. These sentences have single under-specified meanings that require contextual completion.
The verb ‘use’ is similar. Whenever one uses something, one uses it to do something. When we say “Fred used a hammer,” we often have in mind what he used it for. When the purpose isn’t known to our audience, we say more, e.g., “Fred used a hammer to break the window.” When the purpose is obvious—to pound in a nail—we leave it implicit, knowing others will understand. Sometimes we may say, having found a hammer on the floor, “I know Fred used it for something, but I don’t know what.” This is just one possible completion of the meaning of ‘Fred used a hammer’. Lacking a purpose-constituent, the sentence is silent about purpose, just as the linguistic meaning of ‘I am finished’ is silent about what was finished.
What an ordinary speaker uses a sentence S to assert in a given context is, roughly, what an ordinarily reasonable and attentive hearer or reader who knows the linguistic meaning of S, and is aware of all relevant intersubjectively available features of the context of the utterance, would rationally take the speaker’s use of S to be intended to convey and commit the speaker to. In standard communication, all parties know the linguistic meanings of the words, the purpose of the communication, the questions currently at issue, and the relevant facts about what previously has been asserted and accepted. Because speakers and hearers typically know this, what is asserted by a given utterance can usually be identified with what the speaker means and what the hearers take the speaker to mean by the words on that occasion. Applying this to legal interpretation, we look for what the lawmakers meant, and what an ordinarily reasonable and attentive person who understood the linguistic meanings of their words, the publicly available facts, the recent history in the lawmaking context, and the background of existing law into which the new provision is expected to fit, would take them to have meant. That is the content of the law.
There are, of course, complications due, in part, to the frequently collective character of the language users and their audience. Sometimes the lawmaker is a legislative body, sometimes it is an administrative agency, sometimes it is the chief executive issuing an order, and sometimes it is a judge, or court majority, whose written opinion modifies a previous version of the law. What gives the speech acts of these institutional actors the force of law is their position in the constitutionally based legal system that their institutional audiences and the populace as a whole acknowledge as authoritative.
The task of discovering asserted or stipulated legal content is illustrated by Justice Scalia’s dissent in the 1993 case Smith v. United States. The relevant statutory text is:
[A]ny person who … uses or carries a firearm [in the course of committing a crime of violence or drug trafficking] shall, in addition to the punishment provided for such [a] crime … be sentenced to a term of imprisonment of not less than five years.7
The defendant, Smith, traded a gun for illegal drugs, thereby committing a crime of drug trafficking. Did this constitute using a firearm in the commission of such a crime in the sense of the statute? A lower court said it did, Smith appealed, and the Supreme Court upheld the lower court’s ruling, finding the ordinary meaning of “uses a firearm” to cover uses of any sort.
Scalia disagreed.
In the search for statutory meaning, we give nontechnical words and phrases their ordinary meaning.… To use an instrumentality ordinarily means to use it for its intended purpose. When someone asks, “Do you use a cane?,” he is not inquiring whether you have your grandfather’s silver-handled walking stick on display in the hall; he wants to know whether you walk with a cane. Similarly, to speak of “using a firearm” is to speak of using it for its distinctive purpose, i.e., as a weapon. To be sure, “one can use a firearm in a number of ways,” … including as an article of exchange … but that is not the ordinary meaning of “using” the one or the other.8
The Court asserts that the “significant flaw” in this argument is that “to say that the ordinary meaning of ‘uses a firearm’ includes using a firearm as a weapon” is quite different from saying that the ordinary meaning “also excludes any other use.” The two are indeed different—but it is precisely the latter that I assert to be true. The ordinary meaning of “uses a firearm” does not include using it as an article of commerce. I think it perfectly obvious, for example, that the objective falsity requirement for a perjury conviction would not be satisfied if a witness answered “no” to a prosecutor’s inquiry whether he had ever “used a firearm,” even th
ough he had once sold his grandfather’s Enfield rifle to a collector.9
In the first passage, Scalia correctly identifies what question is asked by one who says “Do you use a cane?” In the second, he correctly identifies what is asserted when his hypothetical agent answers “No” to the prosecutor’s question “Have you ever used a firearm?” Applying the lesson to the Smith case, Scalia concludes that in adopting the statutory text, Congress asserted that the use of a firearm as a weapon (or carrying it for that purpose) is subject to additional punishment. Regrettably, he misstated his conclusion, claiming that the ordinary meaning of “anyone who uses a firearm” pertains only to uses of a firearm as a weapon. The Court majority pointed out that this was false:
When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning.… Surely petitioner’s treatment of his [gun] can be described as “use” [of the firearm] within the everyday meaning of that term. Petitioner “used” his [gun] in an attempt to obtain drugs by offering to trade it for cocaine.10
Of course, Smith’s action can be so described, and, of course, the text employs “uses a firearm” with its ordinary meaning. The linguistic meaning of “uses an N” is silent about how N is used. So, when “uses a firearm” occurs in a sentence, the assertion must be completed, either by adding a qualifying phrase (e.g., “as a weapon,” or “as an item of barter”) or by extracting the needed content from the presuppositions of the language users—in this case the shared presuppositions of Congress and its audience, which included judges and justices, prosecutors, police, lawyers, members of the press, informed members of the public, others who might fall within the scope of the law, and citizen jurors called in cases in which the law is invoked. If, as seems natural, Congress would, rationally, have been understood as asserting that uses of a firearm as a weapon are subject to additional punishment, that was the content of the law.
This example illustrates what I take to be the first principle of a proper theory of judicial interpretation.11
(i) The content of a legal provision is what was asserted or stipulated by lawmakers and/or ratifiers in approving it. Although the linguistic meaning of the text is one component in determining that content, it isn’t the only component.
The second principle identifies exceptional cases in which applying the asserted or stipulated content of a legal provision to the facts of the case in a court proceeding doesn’t yield a proper verdict.12
(ii) In applying the law to the facts of a case, the legal duty of a judge is to reach the verdict determined by the asserted content, unless (a) that content is vague and so doesn’t, when combined with the facts presented in the case, determine a definite verdict, or (b) the content, the surrounding law, and the facts of the case determine inconsistent verdicts, or (c) the content plus new facts that couldn’t reasonably have been anticipated by the lawmakers are patently and importantly inconsistent with the intended purpose of the law, which is the publicly stated purpose that supporters advanced to justify it.
This principle covers cases in which judges have no choice but to modify existing legal content in some way. The job of the courts is to mediate between the immense and unforeseeable variety of possible behaviors that may occur, and the legally codified general principles designed to regulate that behavior. Often this requires judges to precisify legal provisions in order to reach determinate decisions. This happens when the antecedent contents of the relevant laws neither determinately apply, nor determinately fail to apply, to the facts of a case. Inconsistency is also a concern. Since the body of laws in modern society is enormously complex, the task of maintaining consistency is never-ending. Typically, the inconsistency is not generated by two laws that flatly contradict each other, so that no possible pattern of behavior could conform to both. Instead, it is generated by the combination of two or more laws with some possible, but unanticipated, behavior. Since the range of such behavior—which, if it occurred, would generate inconsistency—is without foreseeable bounds, no legislative process, no matter how careful, precludes the need for judicial resolutions of inconsistencies. The same is true of inconsistencies between a law’s content and its rationale or purpose that arise from unanticipated situations following its passage.
To get a hint of what judges should do in these cases, it is best to begin by reviewing how we treat analogous cases in ordinary life in which we are given vague, contradictory, or self-defeating instructions. Suppose A’s wife says to A, “Please pick up a large, inexpensive hat for me from the shop. I need it to keep the sun off my face when we go out later.” This request is vague, because it isn’t precise what counts as large or what counts as inexpensive. When A reaches the shop, he finds that no hats are clearly small or clearly large. Although they vary in price, none are clearly inexpensive, either. Knowing the purpose of his wife’s request, A selects one that will keep the sun off her face reasonably well, without costing more than any that would do just as well. Although A can’t claim to have done exactly what she literally asked him to do, he minimized the degree to which he failed to do so, while maximizing the degree to which her purpose could be fulfilled. When he reports back, she is pleased. This sheds light on the situation faced by the judge when asked, in a case of type (iia), to apply a law that is vague about a crucial fact to which it must be applied.
For a situation analogous to (iib), imagine that A’s wife says, “I am dying for a soda. Please bring me the largest bottle of soda in the fridge.” On reaching the fridge, A sees it contains two bottles of soda identical in size. Since the request presupposed there would a bottle of soda larger than any other, the request was inconsistent with the relevant facts, making it impossible for A to do precisely what was asked. Nevertheless, he has no trouble. Noticing that one bottle is open, causing the soda to lose its fizz, A brings the other to his wife, thereby fulfilling the purpose of her request, while minimizing the degree to which he fails to do what was requested—i.e., bring the one bottle of soda larger than any other bottle of soda there.
The analogy with (iic) is a slight variant of the previous case. In the new case, A’s wife makes the same request as before, but the fridge contains only the large, open bottle of soda that has lost its fizz plus two smaller, unopened bottles, one larger than the other. Knowing his wife can’t stand soda that has gone flat, A realizes that although he could do what was literally asked, doing that would defeat the purpose of his wife’s request. To avoid this, he brings her the larger of the unopened bottles, fulfilling her purpose to the maximum degree possible, while minimizing the degree to which he failed to do what he was asked to do.
These examples illustrate a fact about the use of words to guide action that applies both in ordinary life and in the law. When words guide us, we calculate the asserted (or stipulated) content of the use of the words and the evident purpose of that assertion (or stipulation). These, together with relevant nonlinguistic facts, determine our action. In the cases we have examined, A discharges the obligations imposed by his wife’s request, despite either being unable to do what was literally requested because the request is vague or inconsistent, or being able to do what was asked only at the cost of making it self-defeating. In each case, A minimizes the degree to which his action deviates from the content of his wife’s request while maximizing the degree to which he fulfills its intended purpose.
Applying this lesson to judges gives us rule (iii), governing the cases mentioned in (ii).13
(iii) In cases of type (iia–c), the judicial authority is authorized to make new law by adopting a minimum change in the asserted or stipulated content of the law that maximizes the fulfillment of the lawmaker’s discernable intended purpose in making that assertion or stipulation.
The logic supporting (iii) is transparent. Everyone agrees that the job of the courts is to interpret the law by applying it to the facts presented in cases brought before it. In difficult cases—in which (a) the legal content is vague and s
o doesn’t, when combined with the facts, determine a definite verdict, or (b) the content, the surrounding law, and the facts determine inconsistent verdicts, or (c) the content plus new facts which could not have been anticipated are patently and importantly inconsistent with the discernable intended purpose of the law—the judges are authorized by principle (iii) to do what all of us routinely do in ordinary life to fulfill our obligations when given instructions that require minimum modifications in order to maximize the satisfaction of their intended purpose.
Adopting (i)–(iii) as principles guiding legal interpretation involves recognizing two different aspects of interpretation. The first, which might be called mere interpretation, requires judges to articulate the asserted or stipulated content of legal texts plus the lawmaker’s intended purpose in stipulating or asserting that content. Nothing else is needed to faithfully apply the law in unproblematic cases. The second aspect of interpretation, which might be called rectification, involves minimally modifying that content to maximize the lawmaker’s intended purpose in cases in which it is necessary to do so. To think of the legal obligations of judges in this way is to recognize that although judges are, in a limited sense, lawmakers who sometimes change the content of the law, their legal duty—in countries, like the United States, in which legislation is reserved for the other (democratically elected) branches of government—requires them to be maximally deferential to the original lawmakers.14
