Overcoming Objections to Honest Originalism

—I have suggested that one of the most compelling arguments in favor of originalism was that it demands an ethic of honest reading, one that’s identical to how I think we all try to read texts in ordinary life. In this essay I want to deal with two potential objections this view of originalism.

The first of these objections is that the justification would make hash of the scrivener’s error doctrine (relating to drafting mistakes in statutes). The second is that relying on originalist “honest readings” is inconsistent with the use of technical legal language in the Constitution. If the latter were correct, this form of originalism would be inconsistent with “language of the law” originalism articulated, most notably, by my fellow L&L columnists John O. McGinnis and Michael B. Rappaport. While my “it’s-just-reading” rationale for originalism requires no commitment to a particular form of the scrivener’s error doctrine, and takes no position on what language need to read as technical legal terms in the Constitution (or in a statute), it is also entirely consistent with robust versions of each.

Scrivener’s error doctrine is a doctrine in which a judge will recognize a statute’s text mistakenly says one thing when the legislature meant to write something else. A judge will apply the “meaning genuinely intended but inadequately expressed,” Scalia explained in a 1994 case, only when it is “absolutely clear” to a judge what the legislature meant to write. When I gave a talk at the Texas Attorney General’s office last year, one of the attorneys asked whether my “it’s-just-reading” version of originalism meant that the Scrivener’s error doctrine needed to be thrown out. That is, whatever a statute’s text said needed to be read as written, no matter how clear it might be that the text mistakenly represented what the legislature meant to write.

Scrivener’s errors, as it were, are not unique to legal texts. And the solutions we apply to these sorts of errors when reading other texts apply when reading legal texts as well.

Almost every reader at one time or another has run into “drafting” mistakes in something he or she is reading. An “and” instead of an “or,” a sentence fragment, a missing “not,” or a written “not” that should have been left out, numbers that don’t match the text (or that don’t add up properly), even missing paragraphs or pages. Some of the mistakes are obvious and easy to correct. Other mistakes are not so obvious, and we are unsure whether the author has made a mistake, or whether the author wrote something that we have yet to understand. Some mistakes are obvious, but not so easy to correct. The point is that we run across the same problem in everyday texts, and do our best to read honestly given the possibility of mistake.

Indeed, people even apply the “absolutely clear” standard when reading in everyday, non-legal circumstances. I was sitting in on an econometrics course some years back. The instructor had the class turn to one of the text’s statistical appendices. While glancing at the table I happened to note a discrepancy between the numbers for the one-tailed test and the two-tailed test in the table. The instructor wrestled mightily after class to double and triple check my claim, not wishing to attribute error if it truly did not exist. (And whether the table was in fact in error had implications for students and researchers using the table; if incorrect, they would derive wrong conclusions for their statistical tests.)

More trivially, putting Lego models together with my children would occasionally require judgment calls about whether the written instructions accurately reflected the actual set of pieces included with the Lego set. We would follow the instructions, but something would seem amiss. We would have one piece too many, or would seem to be missing a piece. We would check, and recheck, the instructions, and the work we had already done. We needed to be “absolutely clear” the instructions were in error before ignoring them.

The point is that reading honestly does not entail reading text naively, whether reading a legal text, a statistical table, or the instructions to put together a toy. Reading honestly sometimes means we recognize the text might contain an error, and we do our best, when possible, to understand the text despite the error.

Similarly, the argument that we can read statutes (or constitutions) in essentially the same way that we read other texts does not require one to commit to construing legal texts as though they were drafted using ordinary language only. In the course of ordinary life many of us read specialized or technical literature in which some words have specialized or technical meanings. Our goal remains the same: to read honestly. This means we need to discern when certain words are used in a specialized way, when they aren’t, and what those specialized meanings might be. It’s not always clear. But, again, that legal texts might employ technical or specialized legal language does not mean that we need to read with a different goal than we read other texts.

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on January 22, 2018 at 06:32:20 am

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on January 22, 2018 at 12:43:37 pm

Although the post explicitly refers to 'Honest' originalism, there are three issues that render its central point unrealistic: (1) the dogma of judge's honest reading of the law; (2) the ramifications and binding nature of statutes and caselaw; and (3) the need for generality of a solution by amending inaccurate statutory language instead of in court. Issues (2) and (3) may arise even if the premise of judicial honesty is met. Before delving into them, the first issue shall be addressed, lest one intends to elucidate about "properties of the empty set" in the context of some courts.

First, it would be naive to concede Scalia's notion that the judge will pursue the "meaning genuinely but inadequately expressed" of a law. Many judges are too corrupt to go that route. In 2016, trial judge Carol Kuhnke lectured [from the bench] that Michigan "loves employers [...] and it loves anybody who's powerful" and that anybody else has to "stay out of the way" (hearing transcript of August 17, 2016, page 21, lines 1-12, at http://www.oneclubofjusticides.com/p/viggers-v-pacha_74.html ). The immunity doctrine that this judge came up with is the antithesis of her own statement during campaign four years earlier. Indeed, candidate Carol Kuhnke campaigned in 2012 with the message that she has "represented working people as an attorney" (http://www.annarbor.com/news/jim-fink-carol-kuhnke-washtenaw-county-22nd-circuit-court/), an implicit but deceitful suggestion that employees and the powerless wouldn't see their rights shattered if she makes it to judicial office. One same person, two opposite ideologies, one glaring contradiction. What honesty, what reliability in the application of laws can one expect from a judge with those characteristics?

We should also ask: What statute was judge Carol Kuhnke "genuinely applying" during her lecture of 'who in Michigan has access to justice'? None. Without abiding by any legitimate law, judge Kuhnke's "maxim" single-handedly threw to the trash many enacted statutes. Even Carol Kuhnke herself admitted on the bench that her rogue notion is not in the Constitution. Is that honesty? Maybe, but that level of judicial blatancy renders the question of "honesty" pointless. We cannot pretend that judges so immersed in highly questionable "principles" are there to honestly apply the laws.

The second issue is neither hyperbole nor sarcasm, as I'm adopting one example from the post: The application of laws has much deeper implications and than our following of Lego instructions. When reading either type of texts, we have the ability to identify discrepancies between that printed source and our rationale. The difference is that enacted laws are binding whereas Lego instructions are not. Hence, the compelling reason why a judge has the obligation to abide by the terms of a statute, more so where statutory language is clear.

Third, the idea of scrivener's error is not a good reason for legislating while wearing judge's robes. Statutory language which is clearly wrong in the eyes of the reasonable reader ought to be amended for the benefit of ALL the people, not tweaked for the benefit of one party to a lawsuit or the subsequent controversies controlled by that decision.

A drafting error would be evident if there is consensus among reasonable readers about the unintended wrongfulness of plain text of a statute. When consensus is missing, the judge must yield to the clear terms of the legislature.

Note: For those interested in looking at a real-life example of (dis-)honest reading of the law, pages 47-49 of my Application for Leave to Appeal in the Michigan Supreme Court ( http://www.oneclubofjusticides.com/p/viggers-v-pacha_74.html ) discuss the Michigan trial and appellate courts' so-called "interpretation" of MCL 408.481(1) in a way that contravenes (i) the plain language of that Michigan statute, (ii) its interpretation by federal courts, and (iii) its interpretation by previous Michigan published decisions.

To remedy "judicial casualties" that ensue from clearly wrong statutory language, the legislator can always enact (as part of the amendment) retroactivity and other provisions aimed at disabling the obstacles of spurious "res judicata". But it is not for the judge to single-handedly tailor laws which were enacted by hundreds of legislators who in turn represent millions of civilians.

Instances of scrivener's error need to be addressed through legislative amendments, not in court. In the context of scrivener's error, a judge's reading of the law under the same approach as if reading Lego manuals (or other texts) is an invitation to judicial idiosyncrasy. That is impermissible.

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