Being Honest about Being Honest Agents
Calabresi, Guido, Harvard Journal of Law & Public Policy
Let me begin by saying that I am completely in favor of the proposition as stated: that judges should be the honest agents of the enacting legislature. In saying this, I first want to make a distinction between interpretation and construction. Construction is not the same thing as interpretation. Historically in our judicial system, judges have had the power to construe. Whether they should have such power and whether they should only use that power when it is delegated to them by the legislature are interesting and difficult questions.
Let us look at some situations where, traditionally, construction has been employed.
A. Constructing Statutes to Avoid Constitutional Questions
Judges have historically used construction to avoid constitutional questions and thus to avoid over-constitutionalizing the law. Doing this is not interpretation because it does not look primarily to the legislature. It is dishonest to call that kind of construction interpretation. And yet it has been done.
B. To Require a Second Look
Throughout the nineteenth century, statutes in derogation of the common law were supposedly read "literally." In fact this did not mean a literal reading, but rather one that made the statute consistent with the prior common law. (1) That was not interpretation. It was mangling statutes so that legislatures would not make radical changes in the law. It stopped happening at the end of the nineteenth century because Roscoe Pound and the Left noticed that judges, who by nature are conservative, used the approach to keep things as they were, and attacked it. (2) Was this type of construction good? I do not know, but it was done.
C. To Update
Updating obsolete statutes is much more problematic. But consider an analogous approach espoused by Robert Bork. In his great work on antitrust, (3) which was influenced by Alexander Bickel, Bork acknowledged the incompatible goals, frequently ascribed to the antitrust laws, of protecting both competition and competitors. (4) Although he ultimately concluded that "[t]he Sherman Act was clearly presented and debated as a consumer welfare prescription," he did concede that in passing subsequent antitrust legislation, "Congress mentioned a variety of values besides consumer welfare and apparently never recognized or discussed the possibility of a conflict of values."(5) Perhaps foreseeing the forthcoming wave of criticism regarding his reading of legislative intent as focused on consumer welfare, (6) Bork acknowledged that the goals of antitrust policy are not "determined entirely by the intentions of Congress" (7) and proposed an "equally important ... independent, and usually overlooked ... factor: the responsibility of the courts for the integrity of the law and the lawmaking process." (8) Bork concluded that "the requirements of proper judicial behavior," among other things, support the case for "judicial adherence to the single goal of consumer welfare in the interpretation of antitrust laws." (9) And from that followed all of his great work on antitrust.
Was Bork's idea that consideration of "the responsibility of courts for the integrity of the law" should influence judicial construction of the antitrust statutes a good one? I am not sure. But if judges are to take such considerations into account, it is worth thinking about whether, in those situations, one wants judges to acknowledge what they are doing.
Brother Easterbrook says that it is insane to give that kind of power to people who cannot be turned out of office. (10) It may be insane, but it happened at the beginning of our country, in every single state. What do I mean? Judges have the power to construe the common law. Everyone knows that. The common law is different. But where did judges get that power? The common law of England did not just come over on its own. When we declared independence, there was no common law of the United States. …