Update: Welcome VC readers. I respond to Prof. Kerr here.
Prof. Kerr points to an amusing case of poorly drafted legislation in Virginia, where, if read literally, the law prohibits “stopping any school bus which is stopped.” It’s pretty obvious that the statute’s confusingly worded—what the legislature meant was that cars are required to stop when they encounter a stopped school bus, no matter the direction from which the car approaches. That’s fine. The problem is, for Kerr to make this argument, he has to ignore the Holmesian positivism that forms his interpretive background, and end up contradicting his later comments about the Individual Mandate in Obamacare.
Kerr notes that “it’s clear what the legislature is trying to prohibit.” True, but only if you approach the statute with certain normative values, that you derive from some source outside the statute; that is, only if you come to your interpretive task with the assumption that there are certain standards of traffic safety that it’s sensible for the legislature to enforce—and certain standards of interpretation which it is appropriate to use when reading such a law. If, on the other hand, you rely solely on the language itself, as positivism would require, then it is not clear that the statute “should” be interpreted in anything other than a literal manner. To say that “statutes should be construed to avoid absurdity and to avoid unconstitutionality” is to assume a normative framework—just what positivists are far too clever and sophisticated to do—and thus to beg the question.
If this seems like a cheap shot, compare it to Kerr’s argument about the commerce clause. He accuses Prof. Somin of “begin[ning] with an assumption as to how much power Congress has,” an assumption that, presumably, many Americans do not share, and which thereby weakens Somin’s argument (allegedly). But if one is unembarrassed to admit that one comes to a task of interpretation with a commitment to certain antecedent principles, then Somin’s argument makes perfect sense—in fact, it is just like the interpretation Kerr recommends with regard to the schoolbus statute: that is, we read the commerce clause in context, in order to avoid absurd outcomes. When one reads the commerce clause in the context of the classical liberal foundations of the Constitution, in the context of the Tenth Amendment and federalism, and the scheme of limited, enumerated powers in Article I—then it is clear that the power to “regulate commerce...among the several states” cannot be taken to mean that Congress could regulate absolutely everything that has any effect whatsoever on the economy. As Justice Thomas said in Lopez, such a reading would render most if not all of the rest of the Constitution surplusage, and would therefore be an absurd outcome. Reading the Commerce Clause in a way that renders major portions of the Constitution essentially meaningless is really no less absurd than reading the Virginia statute to require stopping a bus that is already stopped, and for the same reason: it ignores the way the law relates not only to itself but to surrouding circumstances, including human nature. When reading the Virginia law we ought to start with assumptions about how buses and automobiles, and the statutes regulating them, should operate—even though those assumptions that may not persuade those not inclined to agree with them. Their disagreement does not prove there is no fact of the matter. And just the same, we should read the Constitution with assumptions, rooted in the Constitution’s purpose, history, and relationship to natural, human rights.
One might, of course, choose to ignore the Constitution’s normative orientation toward protections for individual liberty; one could ignore its philosophical context, the ills it meant to address—one could even, like Holmes, pronounce oneself above petty, normative questions; or like the Blackbird in Chanticleer, attack principles while pretending to be “only asking questions” in a disinterested manner, and to be applying only the most careful precision in interpretation. But then we ought to stick to the absurd reading of the Virginia bus statute, too—a reading that, in principle, is no less absurd than the idea that all activities of any sort are what the Constitution means when it uses the words “regulate commerce.” After all, how do we know what the bus statute was intended to do? By applying what Hamilton referred to in The Federalist as “certain primary truths, or first principles” which apply in the realms of “ethics and politics” just as in geometry, or “rule[s] of construction, not derived from any positive law, but from the nature and reason of the thing.” It is precisely these that the supposedly more rational positivist approach eschews as being primitive “assumptions” and subjective preferences. So which is it—should we stretch the bus statute to reach something it obviously was not intended to reach—or should we revisit our excessively deferential interpretation of the commerce clause, to make it conform to the same principles of reason?
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