It’s an accepted principle that unclear legislative text is best interpreted by reference to sources closer in time to the enactment of the legislation.
> It’s an accepted principle that unclear legislative text is best interpreted by reference to sources closer in time to the enactment of the legislation.
I've come to think that this is a dangerous hybrid of (a) bibliolatry — the idolization of a written text [0]; and (b) the Nuremburg Defense of "just following orders" [1], with the orders here being the aforementioned written text.
What follows is a crude and incomplete attempt at "thinking by writing" about another possible perspective that might be more effective than the balls-and-strikes approach that Chief Justice Roberts supposedly follows:
A. Historically, in medieval England a judge was an agent of the king [2], charged with deciding specific cases as he thought the king would do.
B. In the modern United States, the people are said to be sovereign, acting through their elected- and duly-appointed representatives (legislative and otherwise).
C. A legitimate sovereign seeks "the best" for the society in the long term — with limits on what harms can be inflicted on individuals in that pursuit. (Cf. John Rawls's A Theory of Justice, as partly manifested in the Bill of Rights and other constitutional provisions.)
D. When an extant command from the sovereign — in legislation or constitution — is clear and explicit, then the judge must follow the command (or resign if in conscience she can't comply).
E. But when there's room for different views about just what the sovereign would do at that time and in those circumstances, then the judge — well, judges, making a best guess about what the sovereign would do.
F. Yes, this has elements of a court of equity. It also draws on supremely-pragmatic doctrine from the U.S. military: When a tactical situation isn't covered by specific orders, the leader on the ground is supposed to make a best guess about "the commander's intent" and proceed accordingly. [3]
G. Certainly a judge making such a guess must take into account any available evidence about what the sovereign's intent might be if the sovereign were on the scene.
H. But it's an abdication of responsibility for the judge to throw up her hands and say, I'm sorry, even though the sovereign isn't here today, I'm not allowed to rely on my judgment about what the sovereign would do — instead, I must try to read entrails left over from legislative sausage-making by long-dead legislators who likely didn't consider (or even imagine) everything that I must take into account today.
I. To be sure, this can be calumnized as judicial legislating. But it seems like a pragmatic way to go about judging hard cases in a complex world.
[2] https://en.wikipedia.org/wiki/Royal_justice. In the framework I'm proposing above, today's judges, unlike their medieval counterparts, aren't given a roving commission to seek out cases and "do justice."
