Frequent Citations: Dancing with Interpretation

Warning: hideously long and dull post. I'd move along, if I were you. Go back and watch Men in Coats again.

All right, don't say I didn't warn you.

Elements of the Law: this is a survey course of various legal theories and opposing viewpoints. We look at Formalism and Realism, freedom of contract, rules and discretion, and, of course, statutory interpretation. It is this last section that is most driving me around the bend.

Naturally, in this bastion of Scalia fans, there are plenty of proponents of strict textual analysis. Looking at legislative history is verboten! Wrong! Useless! Worse than useless – misleading and full of false starts and red herrings! Uh huh.

Classics (the study thereof) is, in a sense, all textual analysis. When studying ancient literature in dead languages, there’s a lot of interpretation to be done. Sometimes people go wildly off-course in their interpretations and reach ridiculous conclusions about not only what the ancient text says, but also what it means, what its role was in its society, how it reflects contemporary values, and so forth. Why do they go astray?

Any number of reasons, chief among them two: 1) they impute modern sensibilities to ancient people, and 2) they either under- or over-emphasize the contemporary culture of the literature. Reading Aristotle as though he had a Judeo-Christian view of morality would be absurd – but, of course, people do it. (NB: this could bring up an entire discussion of the influence of Greek philosophy on Christianity, and the cross-influences of Judaism and ancient Greek religions, but I am ruthlessly ignoring the alluring side-track it would be.) It is, however, the second reason that brings up subtle and nuanced facets of textual interpretation which, I suspect, would be well-applied to statutory interpretation.

We have tiny remnants of the Greek and Roman civilizations remaining to us, tantalizing fragments of thinking and behavior that have endured through the ages in whatever scraps of writing, art, and artifacts have been preserved or discovered. There is a constant dance between text and artifact, interpretation and cultural reconstruction. The safest course is to hew as closely as possible to the text, but to understand the words you simply must know what they meant at the time – which meaning, of course, changes considerably from one era to another. Or even from one author to another.

If you remain strictly embedded in the text itself, never referencing the world around it, you risk missing some, most, or even all of its meaning. Perhaps Euclid wouldn’t suffer too greatly from this treatment, but Aristophanes surely would. On the other hand, if you stray too far from the text you risk forgetting where you are in the space-time continuum, if you’ll pardon the expression. Surely the same risks are run by those who interpret our own Constitution and laws?

For instance, in the great debate about statutory interpretation the case of Holy Trinity is held to be a marker of disregard for legislative authority. The decision was that a minister did not fall under the law’s ban on importing laborers. Erm. Would anybody in the late 1800's have considered a minster a laborer? Anyone? A laborer as a fisher of men, perhaps. Am I a heretic for thinking that perhaps it is reasonable for judges to take some responsibility for the law and interpret it in such a fashion as to avoid absurdity? Or would it be better to go the route of Tennessee Valley Authority v. Hill and abandon all context for the sake of an extreme result, to chastise the legislature into more carefully drafting its laws?

I don’t know what the answer is, but I doubt that it is all or nothing.