Popeye the Sailor Man was a popular cartoon when I was a kid. He was one of my heroes, because he had no pretense. His motives were transparent. He was just a simple sailor, and I dreamed of sailing the seas. He had a funny accent, he said “yam” for “am”. His song was simple:
I'm Popeye the Sailor Man, I'm Popeye the Sailor Man I yam what I yam and that's all what I yam I'm Popeye the Sailor Man
I was thinking of Popeye this morning because I have lately found out that I am what is called a judicial textualist. Google gets me the following definition:
Textualism is a formalist theory that primarily interprets the law based on the ordinary meaning of the legal text …
Now, that seems bozo-simple to me. Popeye would understand it. A law says what it says. You read the law, you see what it says, and you interpret it based on the ordinary meaning of what it says. What’s not to like?
Heck, I never really thought that there could be another option. If a law clearly says you can’t dump cadmium in a river, what else could it possibly be interpreted to mean?
So what would another option be? What else would you consider when looking at a law? Well, the quotation above continues:
… and not considering non-textual sources such as intention of the law when passed, the problem it was intended to remedy, or significant questions of the justice and rectitude of the law
Huh? For me, none of those things should be considered by a judge. it is NOT up to a judge to decide whether a given law is just. That is a moral judgement, not a legal judgement. Authority for judges to make moral judgements in place of legal judgements is found nowhere in the Constitution. The judge gets say what laws are Constitutional, not what laws are “just”.
It is also NOT up to the judge to look at what the law was “supposed to do”. Look at the record of unintended consequences of laws. Very few laws do exactly what their authors supposed they would do before they were passed. So why is a judge sticking his nose into a situation that occurs with most laws? If there is a bad law that doesn’t do what it was supposed to do, the Constitution says the LEGISLATURE needs to fix that, not the Judicial system. Judges aren’t supposed to patch up bad laws.
Finally, looking at the inferred intent of the person who wrote the law is madness. There is an ancient law that says “Thou shalt not kill”. Should we consider the intent of the author of that law in understanding what that law means … or should we just say “That law says I should not kill so it probably means I should not kill, duh, because if it meant something else it would say something else”.
The same is true of all of our laws. The authors’ intent is immaterial. The law means what it says. For example, we have a law saying you can’t dump cadmium into a river. Cadmium is a heavy metal that is poisonous, so people around the world find this to be a good law.
But the intent of the authors of that law banning cadmium dumping is meaningless. Perhaps they wanted to fight the cadmium producers cartel. Perhaps they supported an alternative technology. Perhaps they thought cadmium in the rivers was a Communist plot to drain our vital bodily fluids. Perhaps anti-cadmium lobbyists donated millions to their campaign.
Doesn’t matter. None of that matters. Just like Popeye, the law says what it says and that’s all what it says. A judge can’t rule that “It’s OK to dump cadmium in a river because I don’t like what I infer about the intent of the authors of the law”. That way lies anarchy.
Another separate significant difficulty with interpreting the law based on the inferred intent of the authors of the law is that this information is not generally available to the governed. I’m the poor jerk who has to obey the law. I have nothing to base my actions on but the text of the law. So if I do something based on the clear ordinary meaning of the text, a judge should NOT be able to say “With my brilliant legal insight into the mind of the law’s author, I know this law means something totally different from what the text says” and find me guilty of breaking the law.
In short, a judge should NOT be able to say that the law does not mean what the law clearly says. It means just what it says. If it says no cadmium in the river, that’s what it means, regardless of the author’s intent.
I bring this up, of course, because of the latest judicial overreach by another so-called judge. A judge in Hawaii has stopped President Trump’s latest Executive Order (EO) delaying immigration for three months from six countries. The amazing thing about this judge is that he’s taken up mind reading and not only that, he thinks it means something.
He’s claiming that this identical Executive Order would be legal if it were issued by a President whose motives were pure.
Seriously. He’s saying this EO is un-Constitutional because of the President’s intent. That means that if only the President had a warm, pure, Obama-loving heart, then that same identical law, same exact wording and not one comma changed, would be perfectly Constitutional.
Say what? That makes no sense at all!
Let’s pause to consider this. We could have two laws, with IDENTICAL WORDING, and one would be legal while the other would be illegal. How is anyone in the system supposed to be able to make sense of a law like that, from me in the street, to the cops enforcing the illegal/legal law, to the judges expected to rule on my actions?
This is the fundamental underlying problem with judges considering things outside what are called the “four corners of the text”. It leads to a logical contradiction, a “Schrodinger’s Law”, a law which is both legal and illegal until a judge opens the closed box of the author’s mind and divines their hidden intentions.
So yes, this latest judicial madness has shown me that I’m a textualist. I’m with Popeye on this one—a law means what it says and says what it means. Considering the intent of the author of the law leads to a logical impossibility, a law which either is or is not Constitutional depending solely on who wrote the law. That way lies legal madness.
The only good news in all of this is that Judge Neil Gorsuch, who will almost assuredly be the next Supreme Court Justice, is an unabashed textualist. So there is hope for our legal system.
• We cannot have a law which would be Constitutional if written by one woman and un-Constitutional if written by another woman. That makes no sense at all.
• We cannot have a law whose meaning cannot be determined by the average citizen. I can’t read minds like the judge in Hawaii. If I can’t tell what the law means based on the ordinary meaning of the “four corners of the text”, I cannot be expected to follow the law.
• THEREFORE, judges should not and must not consider the intent, the desires, or the moral rectitude and spiritual purity of the author of a law. All of these are “ad hominem” arguments, which is Latin for “against the person”. Ad hominem arguments are arguments against the author herself instead of arguments against her words. Considering any of these ad hominem claims about the author inevitably leads to a law which would be Constitutional if written by one woman but un-Constitutional if written by another woman.
I mean seriously … judging whether a politician’s laws are Constitutional by looking at what she said during her campaign? Think about all of the goofy things that politicians on both sides of the aisle have said in order to get elected! That argument doesn’t even begin to pass the laugh test.
Here’s the rude truth. Good people have written bad laws. Bad people have written good laws. At the end of the day we are all flawed humans. The idea that we should judge the laws by looking at the people behind the laws instead of what the law actually says within the four corners of the text is wrong, wrong, wrong.
Clear enough? Because I could tell you how I really feel about this Hawaiian judge and his lack of judgement … naw, never mind, I’m going for a walk around my bit of lovely redwood forest.
Here, there are clearing skies and crisp air now that the front has passed through. The wind is coming off the north-west ocean, smelling to me of the cold northern waters teeming with green life, of adventures lived and adventures to come …
Best of life to all,
[Update 01] From the news:
The judge issued his 43-page ruling less than two hours after hearing Hawaii’s request for a temporary restraining order to stop the ban from being put into practice.
Can you say collusion? The judge clearly got a head start, and must have known in advance what the Hawaiian appeal for a ban would say. Ah, well. The judge was a friend of Obama’s … coincidence? You be the judge …