Originalist Sin

The new book by Antonin Scalia and Bryan A. Garner is very sure of itself—in fact, far too much so.

Fair enough. But the absurdity doctrine, a la Blackstone, went far beyond the correction of mere scrivener’s errors. Blackstone made clear that in certain unusual situations that the legislature did not squarely consider when it crafted general language, judges could deviate from the literal meaning of legislative enactments in order to avoid absurdity:

Where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and [as to this collateral matter] disregard it…. [T]he rule is, where words bear… a very absurd signification, if literally understood, we must a little deviate from the received sense of them…. [S]ince in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legislator himself would have excepted. [emphasis added]

In their discussion of the absurdity doctrine, Scalia and Garner quote only a short snippet from Blackstone. But as is obvious when we examine the entirety of Blackstone’s discussion, the absurdity doctrine goes beyond scrivener’s errors—what Scalia and Garner refer to as “obviously a technical or ministerial error.” Indeed, Blackstone himself offered up two vivid illustrations of the absurdity doctrine in action and both involved neither typos nor mere scrivener’s errors. First, Blackstone explained that a law punishing anyone who “drew blood in the streets” should obviously not apply to a doctor performing an emergency surgery upon a stricken pedestrian—a situation that the enacting legislature simply did not envision and that therefore required judges to do more than merely correct a “technical or ministerial error” of draftsmanship.

Blackstone’s second example is even more eye-opening, and is in fact stunningly apt in helping us to think about our own Constitution’s language concerning vice presidential impeachments: “[I]f an act of parliament gives a man power to try all causes [cases], that arise within his manor of Dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that; because it is unreasonable that any man should determine his own quarrel.” [emphasis added]

The idea that no man should be a judge in his own case is tightly intertwined with the very idea of the rule of law, and surely this background precept should inform a proper reading of the constitutional clauses governing impeachment trials. Or at least that’s what Blackstone would say, as would the vast majority of the Founding Fathers, who considered Blackstone to be the gold standard on many legal issues.

But Scalia and Garner say something very different. In their effort to constrain improperly activist judicial policy-making, Scalia and Garner have gone too far in the other direction, mangling the absurdity doctrine as laid down by Blackstone. The authors apparently fear that once it is openly admitted that judges can address weird situations that the legislature did not anticipate, all judicial restraint would be lost, and judges would be able simply to displace proper legislative judgments at the drop of a hat. But of course, nothing of the sort follows from Blackstone’s doctrine properly understood and properly applied. The constraints highlighted by Scalia and Garner’s first condition—that judges should act only in cases of true absurdity, not mere suboptimal policy, and should act only to avoid a result that “no reasonable person” could favor—suffice to keep the absurdity doctrine from becoming judicial carte blanche.

Elsewhere in their book, Scalia and Garner discuss a situation in which a murderer stands to inherit from his victim—say, a rich aunt—because no statute explicitly bars this result, and because the murderer falls within the general next-of-kin language in the inheritance statutes on the books at the time of the murder. Prior to the mid-twentieth century, some judges barred murderers from profiting from their own crimes in this way; others permitted the inheritance. Scalia and Garner side with the permissive judges who reached the “textually correct”—their words—outcome. But this result is absurd—morally obtuse. Surely this is not what any legislature ever intended. Indeed, Scalia and Garner themselves admit that “[a]s a general matter of right and wrong, all of us”—all of us!—“recoil from the thought that a murderer could advance his heirship.” And the authors take solace in noting that today, “all states have statutes that explicitly deal with this problem.” But surely it was evident even before all state legislatures explicitly addressed this unusual issue that lawmakers would have wanted to bar murderers from profiting from their crimes in this way—that, as a matter of first (if unwritten) principles, murderers should be judicially estopped from inheriting from their victims.

Granted, when construing statutes, perhaps judges should in genuinely close cases err on the side of literalism, and rely on legislatures to revise ill-considered language. But the statutory revisions necessary to anticipate every wrinkle and every exception may tend to make statute books longer and more technical. By contrast, the Constitution must necessarily be a more compact document if it is to remain accessible to ordinary people. (This was one of Chief Justice John Marshall’s main insights in the landmark 1819 case of McCulloch v. Maryland.) Thus, might it make sense for judges to strike a different balance between textual literalism on the one hand and common-sense holistic interpretation on the other when confronting constitutional language as distinct from the words of, say, the tax code? For lay readers who are more passionate about constitutional law than statutory interpretation, it would have been nice if the authors of Reading Law had devoted more focused and sustained attention to questions of this sort.

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