Just Hook It to My Veins

Judge Amy Coney Barrett’s excellent lecture on statutory and constitutional interpretation

Justice Scalia’s 1989 Lecture on “Assorted Canards of Contemporary Legal Analysis” is well known; indeed it has featured in a post by co-blogger Mark Mancini. Judge Amy Coney Barrett of the US Court of Appeals for the 7th Circuit revisited that lecture last year, and her remarks have been published recently, as “Assorted Canards of Contemporary Legal Analysis: Redux“. They are a short and profitable read, including for Canadian lawyers, to whom almost everything Judge Barrett says is relevant. Judge Barrett’s comments have mostly to do with statutory and constitutional interpretation, but they also touch on the issue of “judicial activism”. And I agree with just about every word.

The main topic Judge Barrett addresses is textualism. She defines it as the approach to interpretation that

insists that judges must construe statutory language consistent with its “ordinary meaning.” The law is comprised of words—and textualists emphasize that words mean what they say, not what a judge thinks that they ought to say. For textualists, statutory language is a hard constraint. Fidelity to the law means fidelity to the text as it is written. (856; footnote omitted)

Judge Barrett contrasts textualism, so understood, with the view that “statutory language isn’t necessarily a hard constraint. … Sometimes, statutory language appears to be in tension with a statute’s overarching goal, and … a judge should go with the goal rather than the text”. (856) Judge Barrett labels this latter approach “purposivism”, but that is perhaps not ideal, since many approaches to interpretation and construction, including ones that respect the primacy and constraint of the text, might properly be described as purposive.

With this in mind, the first three of Judge Barrett’s canards are “textualism is literalism” (856); “[a] dictionary is a textualist’s most important tool” (858); and “[t]extualists always agree”. (859) She notes that

[l]anguage is a social construct made possible by shared linguistic conventions among those who speak the language. It cannot be understood out of context, and literalism strips language of its context. … There is a lot more to understanding language than mechanistically consulting dictionary definitions. (857)

The relevance of context to interpretation is an important reason why textualists (and originalists) don’t always agree. If it were simply a matter of consulting the dictionary and the grammar book,

one could expect every textualist judge to interpret text in exactly the same way. Popping words into a mental machine, after all, does not require judgment. Construing language in context, however, does require judgment. Skilled users of language won’t always agree on what language means in context. Textualist judges agree that the words of a statute constrain—but they may not always agree on what the words mean. (859)

The example of such disagreement that Judge Barrett provides concerns the interpretation of the provisions of the US anti-discrimination statute ostensibly directed at discrimination “because of sex” as applying, or not, to sexual orientation and gender identity. Judge Barrett describes what happened at the US Court of Appeals for the 7th Circuit, but a similar disagreement arose when the matter was decided by the Supreme Court in Bostock v Clayton County, 140 S.Ct. 1731 (2020). Mark wrote about it here.

Judge Barrett then turns to another issue, this one concerned specifically with constitutional interpretation: should the constitution be interpreted differently from other legal texts? The idea that it should ― for which Chief Justice Marshall’s well-known admonition in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) that “we must never forget, that it is a constitution we are expounding” (407) is often taken to stand ― is Judge Barrett’s fourth canard. For her, “the Constitution is, at its base, democratically enacted written law. Our approach to interpreting it should be the same as it is with all written law.” (862) To be sure, the Constitution contains “expansive phrasing and broad delegations of congressional and executive authority to address unforeseen circumstances”. (862; footnote omitted) (One might do an interesting comparison of the US and Canadian constitutions on this point: as a very superficial impression, I am tempted to say that the delegations of legislative power are more precise in the Constitution Act, 1867, but those of executive power are even more vague.) But while constitutional language differs from that of an ordinary statute, the ways in which it should be interpreted do not: “[t]he text itself remains a legal document, subject to the ordinary tools of interpretation”. (862) Indeed, as Justice Scalia already argued, this the only reason for having installing courts as authoritative interpreters of the Constitution: were it not an ordinary law, why would we allow ordinary lawyers to have anything to do with it?

In particular, the principle that “the meaning of the law is fixed when it is written”, which is “a largely, though not entirely, uncontroversial proposition when it comes to statutory interpretation”, (863) applies to the Constitution too. This principle is indeed recognized, in statutory interpretation, even by the Supreme Court of Canada: R v DLW, 2016 SCC 22, [2016] 1 SCR 402 is a recent example. In the constitutional realm, however, our Supreme Court buys into the canard denounced by Judge Barrett ― or at least says it does. (Reality is often different.) As Judge Barrett explains, “as with statutes, the law [of the Constitution] can mean no more or less than that communicated by the language in which it is written” (864) ― and what that language communicates must of course be understood with reference to what it meant when it was communicated, not what it would come to means at some future date.

Judge Barrett makes an additional point which requires some clarification in the Canadian context, so far as statutes are concerned. It concerns the importance of compromise to the drafting of legal texts. For Judge Barrett, since laws reflect arrangements reached by representatives of competing or even conflicting interests, their interpreters should seek to give effect to these agreements and compromises, notably through “reading the text of the statute at the level of specificity and generality at which it was written, even if the result is awkward”, (863) and even when it might seem in tension with the statute’s purpose. The Canadian caveat is that our statutes are, at least to some extent, less the product of compromise than those of the US Congress. Especially, but not only, when they are enacted by Parliaments and legislatures where the executive has a majority, they reflect the executive’s policy, and are primarily drafted by officials executing this policy. But one should not make too much of this. As I pointed out here, statutes ― including in Canada ― often reflect compromises between a variety of purposes and values, even if these compromises are the product of a cabinet’s disucssions or even of a single politician’s sense of what is right and/or feasible. It follows that statutes should indeed be read carefully, with text rather than any one among these purposes being the interpretive touchstone. And as for constitutional interpretation, Judge Barrett’s point applies with full force. It was nowhere better expressed than by Lord Sankey in the  Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58:

Inasmuch as the [Constitution Act, 1867] embodies a compromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the provisions of ss. 91 and 92 should impose a new and different contract upon the federating bodies. (DLR, 65)

After briefly passing on the idea that “judicial activism is a meaningful term” (865) ― she notes that, actually, “there is no agreed-upon definition of what it means to be an activist” (865) ― Judge Barrett turns to the view that a legislature’s failure to overrule a judicial decision interpreting an enactment can be taken as assent to the interpretation. For one thing, since the meaning of a statute is fixed at the time of its enactment, “what a later Congress” ― or Parliament or legislature ― “thinks is irrelevant”. (867; footnote omitted) But further, “even if we did care, there is no way to reliably count on congressional silence as a source of information”. (868) Silence might just mean that the legislature is unaware of the decision, or it might mean that the legislature finds intervention inexpedient, or not enough of a priority, though desirable in the abstract. Judge Barrett does not quote Sir Humphrey Appleby, but she reminds us that we ought not to mistake lethargy for strategy. Judge Barrett also refers to the bicameralism-and-presentment legislative procedures of the US Constitution, but that discussion is probably less relevant to Canadian readers.

Indeed I am not sure how salient this issue of acquiescence-by-silence is in Canada, as a practical matter. I don’t seem to recall decisions invoking this argument, but I may well be missing some. Judge Barrett’s attention to it is still interesting to me, however, because it is one of the possible justifications for the persistence of adjudicative (or as Bentham would have us say “judge-made”) law (not only in statutory interpretation but also in common law fields) in democratic polities.

In that context, I think that Judge Barrett is right that we cannot draw any concrete inferences from legislative silence. My favourite example of this is the issue of the admissibility of evidence obtained in “Mr. Big” operations, where suspects are made to believe that confessing to a crime is the way to join a powerful and profitable criminal entreprise. Such evidence was largely admissible until the Supreme Court’s decision in  R v Hart, 2014 SCC 52, [2014] 2 SCR 544, which made it presumptively inadmissible, except when tight safeguards are complied with. This was a major change, framed in almost explicitly legislative language. Yet Parliament ― with, at the time, a majority ostensibly focused on law-and-order issues ― did not intervene in response to the Supreme Court’s decision, just as it had not intervened before it. Does this mean Parliament agreed with the law as it stood before Hart, and changed its mind as a result of Justice Moldaver’s reasons? Probably not. What does its silence mean, then? Who knows. As Judge Barrett suggests, this does not really matter.

I wouldn’t have much to write about, I suppose, if I always agreed with the courts. I should be more grateful than I tend to be to judge who make wrongheaded decisions ― they may be messing up the law and people’s lives, but they are helping my career. Still, at the risk of depriving myself of future material, I call upon Judge Barrett’s Canadian colleagues to read her remarks and to take them on board. They are smart and show a real commitment to the Rule of Law. And, on a more selfish note, it really is nice to agree with a judge for a change.

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Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

8 thoughts on “Just Hook It to My Veins”

  1. Re textualism as hard constraint, in your view, was R. v. Egger [1993] 2 SCR 451 correctly decided? What about Rizzo Shoes? (These are not rhetorical questions — I am genuinely interested in the views of a committed textualist on these decisions.)

    1. I’m inclined to say that the reasons in Rizzo Shoes are mostly fluff, but the argument based on the transitional provision strikes me as quite serious, even if one ignores the part that relies on legislative history (which absolutely should be ignored). I might be missing something though. More broadly, I think the principle endorsed in Rizzo Shoes is fluff: it’s basically saying that statutory interpretation is in favour of everything that’s good and against everything that’s bad. It doesn’t tell the courts how to resolve tensions among the considerations it lists.

      Egger is really interesting. Tentatively, I think the first issue is straightforward enough and the Court is right to read in background constitutional constraints. On the second issue… I am sympathetic to the court’s concern that the plain meaning of that one provision would make nonsense of the legislative scheme. It is a much stronger absurdity argument than in Rizzo Shoes. I’m still uneasy at the effective re-writing of the legislation (as is the Court, rightly), but I see the case for it.

      My $0.02.

  2. Textualism is just a sophisticated way of justifying conservative opinion, since the past context is largely conservative relative to the present and the future is incrementally normative/liberal to the past.

    Am I wrong in that?

    1. Yes, you are. History doesn’t have a pre-set direction as you suppose. Governments change. The legislative present of 2014 was more conservative than the legislative past of 2004, in Canada, and it way be that the future of 2030 will be more conservative than the present of 2020. At the constitutional level, the mood in relation to freedom of religion and expression is certainly not more liberal now than it was in 1982, although it’s not more conservative either―it’s moving towards the authoritarian left. I also wrote about other examples of history not moving in a single freedom-enhancing direction here: http://www.dpceonline.it/index.php/dpceonline/article/view/436/424.

      1. Thanks you, Leonid. My blunt talk has misconstrued my meaning!

        Having been an avid reader and fan of your publication for many years, I should state that I support your noble fight to correct the misunderstanding amongst Canadian judges and commentators that “the living constitutionalism is the path to justice, and originalism to perdition.” And I will concede there are originalists who are centrist or left (ie Liberal) that simply want the executive branch and the legislative “twig” to supersede the SCC. What I am arguing here is that most Canadian originalism is modern conservatism in 19th century drag and that Coney Barrett is also a modern conservative rationalizing her values with sophisticated ‘textualism’ fluff.

        If we look at Coney Barrett’s arguments in REDUX, her points misconstrue the fact that they all service a value laden position, her conservative / originalist position. We can surmise that she asks herself “What would my great grandmother, OR even Jefferson, Adams, Hamilton, have said?” That approach prevents her from reading into the constitution an alternative interpretation which would be: “What will my great grand-daughter, OR future leaders, be saying?”

        Throughout ‘REDUX’, she admits that textualists have to read into the text some kind of subjective evaluation of intent of the framers contra the intent of the legislators/executive at hand. The catch is there is no way she can access the 18th century truthfully and so her subjective evaluation is in formed by modern conservatism, not 18th century framer’s intent as she fantasizes. With each passing year, she is further away from the framer’s intent and framer’s reality.

        Originalists are merely re-imagining a conservative past that aligns with a current interpretation of modern conservativism!

        With regard to history having a predefined direction. Obviously, nothing is certain. We could be under the jackboot of the Canadian Communist Party in the mid-21st century and in that dystopia, the spectrum would be shifted further to the authoritarian left than ever imagined.

        The thing is, the entire spectrum is shifting leftward, even as governments swing from Conservative to Liberal decade after decade:
        1) I can dust off several counter-points to your well sourced claim that there is no direction to the ideology spectrum. I’ll stay vague and point out that there are select examples of where conservativism in 1960 is now relegated to the fringe in 2020. women’s rights, gender rights etc. The ‘arc of the moral universe is long, but it bends towards justice’ is a poetic line but it has purchase here.

        2) You say Governments change. BUT you will have to admit that Government ideology shifts over time as demographic circumstances change (grandparents are passing away etc) AND wrestling political power from the dominant Liberals involves conceding/shifting ideological ground over time

        3) It doesn’t matter if the government of the day is X party or Y party. X party + 50 years = Y party today and Y party + 50 years = a party legislating on “cyborg implant rights” or other unfathomable anti-conservative issue of 2070.

        4) The entire spectrum is shifting to the authoritarian left in Canada not just under the current government but historically, conservatives have followed along. That’s not to say it might not shift back to the right slightly but overtime conservatives continue to follow the public and the public is shifting towards granting more rights to more subsets of the population.

        5) A future conservative government will not be limiting abortion rights, rescinding marijuana legalization or medical assistance in dying. In part, this is because religious communities are losing membership in Canada proportionately to 1960s Canada. A conservative in 2030 has to capture the general mood where the most seats are held, those seats have been under progressive rule for the majority of the country’s existence. So while there is nothing inevitable about the left predicting the future, they do tend to dominate it with only a occasional setbacks.

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