Making Our Democracy Work (15 page)

The case involves Article I, Section 2, Clause 2 of the Constitution, which says,

Arkansas added a further term-limits requirement. Would-be candidates for Congress in Arkansas could not place their names on the ballot if they had already served three terms. Whether this provision violates the Constitution turns on whether Article I sets forth three requirements (twenty-five years old, seven years a citizen, inhabitant of the state) that are
exclusive
or that constitute a minimum, leaving the states free to add more. The question is difficult. Should the state not be free to exclude, say, those who are mentally ill? But if the state is free to do so, then would the state not also be free to add a property-ownership qualification?
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In
U.S. Term Limits v. Thornton
, the case itself, most of the considerations that might help a judge find an answer were almost perfectly
balanced. The language favors “minimums” but only slightly. Supreme Court precedent favored “exclusive,” but it was not definitive. Hamilton and Madison argued that the requirements were “exclusive.” Jefferson and Joseph Story argued that they set “minimums.” Many states in 1789 maintained property requirements for public office. But only one state, Virginia, applied those requirements to candidates for federal office. The Tenth Amendment, reserving to the states (or the people) all powers not delegated to the federal government, seems to favor a “minimums” reading; but the federal nature of the legislative body at issue, namely, Congress, argues for uniform (hence “exclusive”) federal requirements.

With these and similar arguments counterbalancing each other, the following considerations become critical. To decide against Arkansas would make it virtually impossible for any state to impose term limits on its federal officeholders. But to find in Arkansas’s favor could significantly change the way Congress works, either in a democratic direction (by assuring members in closer touch with the state) or in an undemocratic direction (by giving experienced congressional staff members more power). A judge who sees in the Constitution’s division of power between federal and state governments an effort to maintain the influence, power, and authority of the individual states would likely place more weight on the first consideration, the need not to restrict state power. A judge who sees the Constitution as creating a tamper-free method for obtaining a democratically elected federal legislature would likely place more weight on the second consideration, the need to prevent a single state from changing the way Congress functions.

The Court by a vote of 5 to 4 held Arkansas’s term-limits requirement unconstitutional. Whatever one thinks about the merits of that decision, it is difficult to characterize it as “political,” “ideological,” or even “subjective.” The division between the judges may reflect different points of view—arising from differences in judges’ backgrounds and experiences. It may involve different judgments about what interpretation will better help the constitutional provision work effectively. But such differences are inevitable in a judicial body composed of different members selected by different presidents at different times. And, given the diversity present in a nation of 300 million individuals, these kinds
of differences among nine Supreme Court justices are healthy and desirable.

Other examples will further illustrate the general pragmatic approach I have in mind. They come from different areas of the law, including statutory interpretation, administrative review, federalism, and individual rights. This diversity is important. Although a pragmatic approach seeks a workable Constitution, not all applications of that approach involve interpretation of the Constitution itself. In fact, most of the Court’s work involves interpretations of federal statutes, federal/state relationships, and judicial review of administrative actions, rules, or regulations (see
Appendix B
). That is because writing statutes and rules makes up much of what government does. A workable Constitution requires judges to remain aware of appropriate institutional roles and relationships in all these areas.

None of the examples I provide in the remainder of this part suggests an all-encompassing theory about how to decide every case in each area. Rather, the examples point to legal tools that are useful for deciding cases in ways that take advantage of the relative competencies of our different government institutions, respect the relationships among these institutions, and make sense in practice. The result is a workable Constitution and continued public faith in the Court’s decisions.

T
HE
C
ONSTITUTION DELEGATES
legislative power to Congress. Congress’s basic job is to exercise that power by enacting statutes (normally with the president’s consent). The Court’s basic job is to interpret those statutes, not in the abstract, but by determining how they should be applied in particular cases. And sometimes the Court must also decide whether a statute is constitutional. These tasks make up by far most of the Court’s work. How the Court performs those tasks determines whether its interpretations will effectively carry out the statute’s objectives and helps determine whether its relationship with Congress will tend more toward the cooperative or the confrontational.

Ordinarily, cases that reach the Supreme Court involve ambiguous statutory language. When judges interpret that language, they look to the words at issue, to surrounding text, to the statute’s history, to legal traditions, to precedent, to the statute’s purposes, and to its consequences evaluated in light of those purposes. Of these I find the last two—purposes and consequences—most helpful most often. I believe maintaining a strong workable relationship with Congress requires the Court to use these two tools to help unlock the meaning of a statutory text. A strong relationship, in turn, helps the nation’s institutions, and the law, function well.

An example will help illustrate this kind of judicial task. In 2008, in France, a train conductor collecting fares found that a passenger had a basket containing two dozen live snails. The passenger, a kindergarten
teacher, was bringing them from his home in Normandy to Paris, where he intended to use them for classroom instruction. The conductor’s fare booklet said that “purchase of a ticket is required for all animals.” The booklet also provided that the fare for an animal should cost half the price of an ordinary ticket, adding that “if the animal weighs less than six kilograms and is carried in a basket, the fare for the animal shall be no more than 5.10.” The conductor thus asked the teacher to buy a 5.10 ticket for the snails. The teacher protested that the fare booklet rule surely was not referring to snails. Nonetheless, he paid. The press wrote about the incident, and the train company eventually reimbursed the teacher. But who was right? And why? For that matter, should the conductor have required the teacher to buy two dozen tickets—one for each snail? Here, reduced to its essence, is a problem akin to that of interpreting an ambiguous statute.
¹

S
OME JUDGES, LAWYERS
, and law teachers believe that judges, when answering this kind of question, should strongly emphasize the first four tools that I mentioned: text, history, tradition, and precedent. Following this text-oriented approach, they try not to use purpose, consequences, or the legislative debates that compose the history of the statute’s enactment in Congress. In my view, however, a primarily text-oriented system cannot work very well. A more realistic example will help me explain why.

A federal statute permits citizens to sue the government and to recover damages for serious harm that federal officials wrongfully caused, including harm to their property. But the act contains a series of exceptions, including an exemption for harm to property caused by “any officer of customs or excise or
any other law enforcement officer.”
Whom exactly does the exempting phrase, “any other law enforcement officer,” cover? Does it cover only those law enforcement officers who carry out “customs or excise” duties? Or does it cover (and exempt from liability) other law enforcement officers as well, such as federal prison officials?
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Text-oriented judges will carefully examine the statute’s language. They may refer to a dictionary or look to surrounding language. They will see if the phrase has some special traditional or historical meaning. They will search the precedent, and, failing to find any strong reason for giving the words a specialized meaning, they will try to give them the meaning they carry in ordinary, non-statutory life. In this case, the key words “any other” are not technical, and dictionaries, history (other than legislative history), tradition, and precedent do not suggest any specialized meaning. So the judge may well conclude that the words “any other” mean what they say, namely, suit is barred against
any
other law enforcement officer, including prison officials.

What is wrong with that? Let us break this question down into two parts: First, what is wrong with the assumption that language in a statute means what it means in ordinary life outside the statute? Unfortunately, such an assumption is rarely helpful. As those who study language have pointed out, we use words, strung together in sentences, uttered on particular occasions orally or in writing, to perform many different functions. We use them to ask questions, to make statements, to agree with others, to write contracts, to perform marriages, to pray, to vow, to inform, to estimate, to recommend. We also use them to write laws—a highly specialized activity. The assumption begs the further question: What part of “ordinary life”?
³

The statute’s language may be vague, and the scope of its coverage may be uncertain. But it does not help us understand a vague statement to pretend that someone else “in ordinary life” made the statement. How often would it help us understand, say, a difficult point in a university lecture to pretend that the lecturer is not a lecturer but a journalist? Similarly, how often does it help us understand a statute’s vague or ambiguous language to pretend that its congressional authors were engaged in any activity other than the one they were engaged in, namely, writing a statute?

It is also rarely helpful to rely on dictionaries. Nothing is wrong with turning to the dictionary when a court is trying to interpret a technical word, say the word “percentile” used in a special technical sense in a statute that incorporates the understanding of professional statisticians. In such a case, Congress might well have intended non-statisticians
to look to a dictionary to discover how statisticians use the word.
⁴

Far more often, however, statutory uncertainty does not arise because the statute’s language has an unclear technical meaning or because ordinary readers fail to understand the general
kinds
of situations to which the statute’s language refers. We all know the meaning of the words “any other law enforcement officer.” We need not look them up in a dictionary. Rather, here the statute is ambiguous or uncertain in respect to the scope of its coverage. Its general language does not tell us precisely which situations fall outside Congress’s demonstrative intent.

Suppose a statute uses the phrase “
any
court.” We have no trouble understanding the words, but we may have trouble understanding whether the statute includes foreign courts or limits its scope to American courts. Does a naturalist who tells us “all the beavers are out swimming” mean to include those beavers just born? Does a friend who says “all bicycle shops carry water bottles” mean to include secondhand bicycle shops? Context revealing a speaker’s
purposes
, not a dictionary that explains a word’s meaning, provides the necessary help here. Sam’s mother tells him, “Go to the store and buy some ice cream, flour, fruit, and anything else you want.” It is context, not a dictionary, that will help us learn whether Sam’s mother has given him permission to buy fifteen comic books.
⁵

Now reconsider the phrase in our example, “any officer of customs or excise or any other law enforcement officer.” We can be certain that the word “any” here does not refer to any other law enforcement officer in the universe. It does not refer, say, to a German law enforcement officer. Gazing however thoughtfully at the words or consulting a dictionary will not help us discover
which
law enforcement officers Congress intended the phrase to cover. We must look further. Who wrote the words? And we must look to the purpose. Why did they write them?

In this case, it turned out that the statute’s drafters drew the language from a similar exemption found in English law. English law limited its exemption to a small subset of all law enforcement officers. Moreover, it was difficult to determine why, in the context of a statute that expanded citizen remedies, Congress would have wanted to limit so severely an injured person’s right to recover. For these and other reasons
related to Congress’s purposes, I would have interpreted the exempting phrase to refer only to those law enforcement officers who performed tasks related to customs and excise duties.
⁶