As everyone knows, Justice Roberts finds the Obama administration?s reliance on the commerce clause unpersuasive and would have declared the Affordable Care Act unconstitutional if it rested upon a claimed ability of Congress not only to regulate but to compel commerce. But he then saves the act by redescribing it as a tax, thereby bringing it within the ambit of congressional powers. Now, whether this ?alternative interpretation? is ?reasonable? can and has been debated ? in NFIB v. Sebelius, Scalia the justice rejects the canon Scalia the author defends ? but there can be little doubt that Roberts has canon #38, or something very much like it, in mind when he writes, ?every reasonable construction must be resorted to in order to save a statute from unconstitutionality.?
What is a canon? Scalia and Garner are careful to say that canons ?are not ?rules? in any strict sense? ? canons do not direct those who follow them to specific actions in the manner of rules like ?no smoking? or ?no pets allowed.? Rather, canons are ?presumptions about what an intelligently produced text conveys.? This does not mean any intelligence, but the intelligence that accompanies, or should accompany, the production and interpretation of legal texts. The canons, the authors say, are ?background principles of assumed legislative intent.? They get their sense and their rationale from the enterprise in which they function, and they might be inapplicable or out of place in another enterprise.
Canon #49 ? ?Ambiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant?s favor? ? makes sense in the context of a concern that individuals not suffer the law?s penalties if the fact of their offense is not crystal clear ? ?a fair system of laws requires precision in the definition of offenses and punishments.? But the same canon might have little appeal to a parent whose teenage daughter is parsing the guidelines she has failed to follow. We hear often about ?the way lawyers think?; canons are what lawyers (and judges) think with; they are guides to the realization of the law?s purposes, not a guide to purposes in general.
The bulk of Scalia?s and Garner?s book is taken up by an exposition of the canons, 57 in number. (There are also ?thirteen falsities exposed.?) They range from canons governing the use of ?ands? and ?ors? to semantic canons (?Words must be given the meaning they had when the text was adopted?) to punctuation canons (?Punctuation is a permissible indicator of meaning?) to contextual canons (?The provision of a text should be interpreted in a way that renders them compatible, not contradictory?) to government-structuring canons (?A federal statute is presumed to supplement rather than displace state law?).
As you might expect, this is a long book, but it is compulsively readable. Scalia and Garner have a talent for making complicated and sometimes arcane points of doctrine seem accessible and even plain. The argument is carried by analyses of innumerable cases, each of which is used to elaborate and illustrate a particular canon. The economy with which the cases are presented and explicated is remarkable. The reader is at once entertained ?humorous asides abound ? and initiated into the rigorous yet often wacky world of the law. The authors follow Horace?s injunction to both teach and delight. In short, this is a wonderful book.
But it is also wrong in its main polemical thesis (it didn?t have to have one) ? the thesis that textualism is the one mode of legal interpretation that avoids subjectivity and the intrusion into the judicial realm of naked political preferences. ?Textualism,? the authors tell us, ?begins and ends with what the text says and fairly implies.? Textualists proceed ?on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.?
Textualism, so defined, rules out and stigmatizes the alternative interpretive strategies espoused by some jurists and legal academics. We are textualists, Scalia and Garner announce, which means that we ?ascribe to the text the meaning that it has borne from its inception, and reject speculation about both the drafters? extratextually derived purposes and the desirability of the fair reading?s consequences.? That is, we reject the identification of meaning with the intention of the author or authors, and we reject too the consequentionalism (deciding on the basis of preferred outcomes) of ?Living Constitution? proponents who believe that the Constitution is an ?open invitation for each generation to give its capacious terms whatever meaning that generation favors.?
Living Constitutionalism is not much of a target in this book. It is dismissed, as I believe it should be, as a form of political gerrymandering rather than as a form of interpretation; for it regards the text not as an object of explication, but as an object of manipulation. (Let?s see if we can make it mean what we want it to mean.) Intentionalism, on the other hand, is a constant target. Scalia and Garner sometimes call intentionalism ?purposivism?: the purposivist in their account is someone who ?goes around or behind the words of the controlling text to what he believes to be the provision?s purpose.? That is, the purposivist substitutes for the objective materiality of the text the subjective will-o?-the wisp of purpose or intention, and unconstrained by the text he is free to ??fill in? or change the text according to [the purpose] he has chosen.?
Scalia and Garner are quick to say that textualists do not ignore purpose. ?Of course, words are given meaning by context, and context includes the purpose of the text.? Indeed, purpose ?is the context that helps to give words meaning ? that might cause draft to mean a bank note rather than a breeze.? But, Scalia and Garner insist, ?the purpose must be derived from the text? and not the other way around. In a well-drafted document (a third meaning of ?draft?) the text itself will tell you whether the meaning ?bank note? or ?breeze? is the right one.
No, it won?t. Take the sentence, ?Let?s avoid the draft.? It could mean ?let?s get out of military service? (a fourth meaning of ?draft?), or it could mean ?let?s go inside and diminish the risk of catching cold,? or it could mean (as spoken by a general manager of a professional sports team) ?let?s bypass the unpredictability of the draft (a fifth meaning of draft) and trust in free agency,? or it could mean ?let?s not do a draft of the bylaws (a sixth meaning of ?draft?) but get right to the finished product.? The text does, as Scalia and Garner say, take it meaning from its purposive context, but the text won?t tell you what that purposive context is.
But won?t more context tell you, as in, ?Let?s avoid the draft and go to Canada?? No, all four of the sentence meanings I have listed could still be maintained; the dream of explicitness, the dream of adding enough words to a text so that its meaning is clear and indisputable cannot be realized. The specification of purpose is what stabilizes a text and a text?s purpose is not self-evident; you can?t simply extract it from the text, and without its having been assumed or presupposed, the text will not settle down. Intention/purpose comes first, texts and meanings follow.
One of Scalia?s and Garner?s examples makes my point. They recall a zoning regulation reading, ?no drinking saloon may exist within a mile of any schoolhouse.? The regulation, they complain, was ?misinterpreted? and ?misapplied? when a ?court decided that a certain schoolhouse had to be moved.? This despite ?the clear purpose of the statute as gathered from the words alone (?no drinking saloon? is the prohibition) was to protect schoolhouses not saloons.? Maybe so; it depends on whether the drafters were concerned with the flourishing of commerce, in which case they would have been willing to move a schoolhouse in order to save a business, or were concerned with protecting schoolhouses from unhealthy influences, in which case they would have been willing to sacrifice a saloon that might not be able to flourish in another location. No doubt there is evidence lying around in the legislative history or in the charge to the committee of drafters or in newspaper articles that would point the interpreter in the right direction. But the evidence (of purpose/intention) won?t be ?in the text? in the sense Scalia and Garner insist on.
They in fact know that, although they don?t explicitly say so. Consider the discussion of canon #37, the ?Absurdity Doctrine?: A provision may be either disregarded or judicially corrected ? if failing to do so would result in a disposition no reasonable person could approve.? ?No reasonable person? is a bit too abstract. ?No reasonable person fully informed about the history and purposes of the legislation in question? would be better, as one can see from Scalia?s and Garner?s illustration. Arkansas passed an act that included this section: ?All laws and parts of laws, and particularly Act 311 of the Acts of 1941 are hereby repealed.? Scalia and Garner point out that a natural or ?literal? reading of this section amounted to an ?omnibus repealer [that] threatened to wipe out all the statutory law in the state.? They approve the ruling of the Arkansas Supreme Court, which held that ?No doubt the legislature meant to repeal all laws in conflict with that act, and, by error ? left out the usual words ?in conflict herewith? which we will imply by necessary construction.? That is, we know that the legislature could not have had the intention that produces a drastic reading of its text; so we will supply the reasonable intention and give the text the meaning the legislature must have intended. The ?necessary construction? was the necessary construction of an intention which, when put in place, stabilized the text that did not contain it.
I should add that the intention to repeal all statutory law in the state was not an impossible one; all it would take was a legislature full of the die-hard, hard?core libertarians who flourish today as presidential candidates and members of Congress. The Arkansas Supreme Court did not bypass or override the text in favor of an intention it came up with; it stipulated one intention that produced a text it found reasonable and rejected another intention that would have produced a text others might have found reasonable. Interpretation, as many of Scalia?s and Garner?s examples show, begins and ends not with the stand-alone text, but with the assumption or specification of an intention without which there would be no text of the kind that makes legal directions possible and capable of being followed.
Finally, Scalia and Garner think they have a knockdown argument against recourse to intention in legal interpretation when they distinguish between trying to figure out Shakespeare?s intention, which is ?at least to look for something that almost certainly existed,? and trying to figure out the intention behind a legal document ?crafted by multiple authors? who may have had different things in mind. The idea is that while you might reason about or guess at the intention of a single author, when multiple authors are involved the game can?t be played.
But Scalia and Garner are multiple authors, and I (like any reader of their book) have no trouble at all talking about what Scalia and Garner mean; not because their text, considered apart from intention, delivers a single meaning or because I have gotten inside their heads (intentionalism has nothing to do with psychology), but because I understand them as entering a longstanding conversation about what interpretation properly is and having in their minds as they do so the history in which competing theories have been offered and debated in terms that must be taken into account by new entrants into that conversation. It is the intention to be participants in that history and not in the history of debates about free will or the mind/body problem or the meaning of Hamlet that I attribute to them and attribute to them jointly, independent of what idiosyncratic motives (of glory, revenge or enlightenment) they may harbor in their respective psyches. When I get to a passage of their book that is not quite clear to me, I ask, O.K., what problem are they in the course of considering and what are the stakes as they see them, and then I proceed, having stabilized, at least to my own satisfaction, their intention and thereby stabilized their text. Figuring out what a multiple-authored text means is in principle no different from figuring out what a single-authored text means; both require the same ?necessary construction? of an intention the words alone won?t yield up.
Nothing I have said here should be read as a retreat from my judgment that ?Reading Law? is a wonderful book. The falsity (as I take it to be) of the authors? polemical thesis does not detract at all from the considerable accomplishment of laying bare the inner workings of legal interpretation. And since that thesis ? that interpretation begins and ends with the text ? is so often belied by the examples offered in support of it, we can safely put it aside and be grateful for the pleasure and illumination Scalia and Garner provide.
Source: http://opinionator.blogs.nytimes.com/2012/07/16/intention-and-the-canons-of-legal-interpretation/
st. bonaventure ira glass march madness swain match day nene dark shadows trailer
কোন মন্তব্য নেই:
একটি মন্তব্য পোস্ট করুন