Corrupt Hive

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Statutory Construction

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This post on is a excellent example of how one presents a very biased viewpoint under the rubric of informing the public. It misrepresents the concept of texualism as well as concept of legislative intent. It’s a mess; I am going to try and fix it.

The underlying presumption of both textual and purposive theories of statutory construction is that there is a value neutral way of interpreting the law. The arrogance of both these viewpoints is that, by golly, they’ve got a handle on this value neutral method and those other guys are just biased. It’s like a greased pig or the Colonel’s Secret Recipe, only one person can have a handle on it at a time. Point one: there is no value neutral way of interpreting the law, and if there was it wouldn’t be a virtue. This has always been true and is always going to be true. Let’s stop pretending that there is one abstract theory that is superior to the others.

Professor DumbleDorf is exactly right when he says that the judicial results of applying theories of statutory construction do not correspond neatly with modern notions of “liberal” or “conservative”. D’oh. The various methods of statutory construction are just tools to accomplish some particular purpose; most of the time they are just post hoc rationalizations. As Justice Holmes famously noted, “General principles do not decide specific cases.” Point two: Construing a statue using one theory or the other is a meaningless exercise in the abstract as it doesn’t assist a judge in the slightest in actually resolving the case. A theory can never compel a judgment.

The case at issue in fact illustrates these two points well. As Justice Holmes also said, “It is the merit of the common law that it decides the case first and provides the reason after.” The reason that the judges adopted a textual approach in this case is because it is the approach that allows them to get to their judgment most logically. When the article states that, “In dissent, Justice Michael Streit suggested that the record did not rule out the possibility–and thus that the jury might have found–that Isaac in fact intended to and did derive sexual gratification from the fact that a police officer might catch him in the act” we are in the land of the bizarre. No one actually believe this and no rational jury could have found that as a fact. The entire context of encounter angrily militates against it. Moreover, it besides the point; the prosecution was for his crime against the women, not against the police officer. The jury could not have found him guilty of a crime for which he was not on trial. The only basis upon which a jury could reach find him guilty is “he’s a perv; he’s guilty.”

But the article moves from the realm of the bizarre to the realm of the indefensible when Professor DumbleDorf writes, “What possible purpose would have been served by exempting someone like Isaac from the statutory prohibition because, by sheer luck, the objects of his gratification happened not to look out the window and see him exposed, even though another person did?” The answer: because the law does not punish someone because they are lucky or unlucky, it punishes them based upon the actual facts of the case. The luckiness of the situation is simply not relevant.

The fundamental problem with purposivist argument in this case is not that it is a weaker theory; the problem with it’s application in this particular case is that it leads to a judgment that is irrational. The judges adopted a textual approach because the textual approach was the one that allowed them to avoid this irrationality.


Written by Daniel

September 10, 2008 at 10:42 pm

Posted in Uncategorized

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