In response to my post about his legal interpretations, Prof. Kerr insists that the reason he reads statutes to avoid absurdity is simply because he’s been ordered to do so by the court: “If the Supreme Court of Virginia instead adopted the canon that statutes must be read to encourage absurdity, then I would change my interpretation of the statute accordingly.”
This is a remarkable admission. What Kerr is saying is that if the Supreme Court were to declare that 2+2=5, then that would make such an interpretation true—that if, like the dictator in Bananas, the constituted authorities were to declare that “all girls who are not 16 years of age are now 16 years of age,” why, then, that would be the law. In short, “law” means simply the command of the authority in power, and nothing more or less. All law, therefore, is inherently arbitrary: all law is simply the say-so of the authority in power.
A couple problems with this. First, it goes without saying that this is contrary to the entire theory of the American constitutional order, which is rooted firmly in the idea that there are more basic principles which are what make law lawful. A law that required an absurdity, that declared that 2+2=5, would be, in the eyes of the framers, not actually law—precisely because it would be arbitrary, and arbitrariness, in their eyes, was the opposite of law. I happen to think they are right about that. Not just that I agree with them, but that they are actually right.
Secondly, note that such positivism cannot account for lawfulness itself. In other words, to say that “The will of the duly constituted authorities is the law” commits the fallacy of petitio principii when you ask “What makes these authorities ‘duly constituted’”? The promulgation of a bill according to procedural rules is sufficient to make that bill law, regardless of its content, then on what basis do we distinguish between different rules of promulgation or procedure? Why should Kerr follow what the Virginia Supreme Court says about statutory interpretation? Why not follow what Madame Osage the Psychic says about statutory interpretation, instead? The answer, according to a non-positivist like me, is because the authority is duly constituted in that the procedural rules are themselves in accord with pre-political normative standards that are objectively true. But the positivist can’t make that argument. For him, all rules are simply the will of the governing power—so there can be no difference between the “duly” constituted authority and someone who just pretends to be duly constituted. All claims to rule are inherently arbitrary; there is no fact of the matter—no principle of political legitimacy.
(One might say—yes there is, there’s violence. The stronger party’s will is law. That’s not actually correct. The positivist cannot claim that the stronger party’s will is more legitimate or true or right than the will of the weaker party; no claim to authority ever has any legitimacy—it’s just that one side destroys the other and then proceeds with its arbitrary rule.)
Again, note that Kerr is saying that he would even subscribe to an absurd result—a result that declared that up is down and that Thursdays are actually Wednesdays and that the earth stands unmoved and the sun orbits around it—if the Virginia Supreme Court were to declare as much. But where does the Virginia Supreme Court get this power to confer legitimacy? Is it not equally arbitrary to recognize them as a duly constituted authority? For Kerr to recognize them, and not Madame Osage the Psychic as the duly constituted authority, when she claims such power, must be one of two things: it must either be a recognition of some normative principle of legitimacy (which Kerr has disclaimed) or a purely personal, arbitrary decision on Kerr’s part—a decision that has no foundation in anything but itself. In a post reflecting on Shakespeare’s Richard III, I recently noted that dictatorial power is solipsistic in a way—it recognizes no principle except itself, as creator of the same reality it perceives. Here we see this doctrine in an unusually explicit form: law is whatever the duly constituted authority says, and we know it’s duly constituted because Orin Kerr arbitrarily decides to recognize it.
Third, as I’ve pointed out before, the courts themselves do not regard their role in this way. In Kerr’s view, the decision of a court is correct for no other reason than that it is the decision of the court. Thus the Supreme Court was right—had to be right—when it decided Bowers v. Hardwick. And then the Supreme Court was right—could not be otherwise than right—when it decided Lawrence v. Texas. These decisions were both right because they were decisions of the court. The problem is that in Lawrence, the Court said that Bowers was “wrong when it was decided.” And that can’t be, since it was a decision of the Court. Yet Lawrence must be right, because it, too, was a decision of the Court! This cretan paradox plagues any pure positivist. The courts, at least, do not regard themselves as making law simply by pronouncement. And since Kerr has said that the Court’s say so is the law, then it cannot be the case that courts make law by mere pronouncement. The courts themselves hold that their job involves pre-legal principles of right and wrong, logic and illogic, sense and nonsense, which law must respect and obey. Reading statutes absurdly is not wrong just because courts say so; courts believe it’s wrong because it is irrational and arbitrary and therefore not law. And they are, in point of fact, correct about that.
Whatever else one might say about positivism’s Humpty Dumpty theory of law, it bears no relationship to American constitutions, and attempts to operate our constitutions on such a theory work about as well as operating an automobile on vodka and tonic instead of gasoline. The federal Constitution and our state constitutions all have a normative orientation, and rightly so. The Constitution declares, for example, that liberty is a blessing. The Fourteenth Amendment declares that everyone has the right to due process of law—not just any process, but due process, and the Thirteenth Amendment says nobody can be reduced to involuntary servitude except by being “duly convicted” of violating a law. In a positivistic world that eschews normative considerations, the words “due” or “duly” are rendered meaningless, because any process of law would be “due” and any procedures would be “due” conviction. If the Virginia Supreme Court were to say that Timothy Sandefur is guilty of murder, that would be the fact of the matter, and Prof. Kerr would feel himself (arbitrarily) bound to enforce that conviction. This is hardly the principle of lawful liberty that the Declaration of Independence articulates and that the founders made the basis of our legal order.
I’m on the road this week, so this is written in haste. Those interested in these ideas should check our Hadley Arkes’s very interesting new book Constitutional Illusions And Anchoring Truths, not to mention his superb The Return of George Sutherland.
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