Text and Subtext

Unfortunately, you must read to the end for the Game of Thrones pay-off.

Unfortunately, you must read to the end for the Game of Thrones pay-off.

What does the Minnesota Supreme Court really care about?  Consider:  For his analysis of the Fourth Amendment consent issues in Brooks, Justice Stras required only 308 words, a mere two paragraphs.  But he needed 21 opinion pages in February’s State v. Nelson to explain why, in the criminal care-and-support statute,  “care” and “support” do not mean the same thing.  Granted, Nelson was a majority, and Brooks a concurring opinion — the writing conventions for each are different.  But the basic point remains. Add to Stras’s output in Nelson that of the two dissenting justices, and you wind up with 46 opinion pages devoted to the meaning of a three-word phrase.  The Minnesota Supreme Court cares a great deal about statutory construction.

Nelson reminds me of State v. Lessley, the case from a few years ago which addressed whether the state has the power under the Minnesota constitution to veto a defendant’s decision to waive a jury trial.  The surprise in Lessley was the extent to which originalism framed the terms of the debate, even at the state supreme court level. Originalism, of course, is the view that constitutions mean what their framers thought they meant, as versus the view that constitutions evolve with the times.  The majority opinion in Lessley was authored by Justice Paul Anderson, presumably no great fan of the Federalist Society.  As retired Rice County Judge Bill Johnson noted on this blog in 2010, it consisted of a “lengthy historical explication going back to the two competing constitutional conventions at the time of Minnesota statehood.”  There was “almost no discussion of the values, principles, and purposes underlying a right to waive a jury trial.”

Nelson strikes me as comparably telling.  Its combined 46 pages (imagine the Minnesota Supreme Court of a generation ago expending that kind of ink on a statutory construction case) attest to the influence of textualism in today’s legal culture.  Textualism is an approach to statutory construction that counsels reliance on text alone.  It discourages excursions into legislative history or pragmatic assessments of the problems a statute was intended to remedy.

On the surface, originalism and textualism do not appear to have much in common. Originalism requires that you examine history; textualism prefers that you ignore it. Originalism treats its framers as all-knowing.  Textualism treats its framers as no-knowing.  But fundamentally, originalism and textualism are both about the tending of sacred texts.  Originalists focus on what the texts’ framers intended while textualists just focus on the texts, but for both the words represent roughly the same thing:  a fixed point, a kind of legal pole star from whose stationary position knowledge may be measured with apparent certainty.  Originalism and textualism are both hedges against relativism. Their principal concern is curbing unconstrained judging.  And their stars have risen in tandem over the last 30 years.

In today’s climate, judges to whom the “restraint” tag is important demonstrate their bona fides by the manner in which they undertake the dissection of a statute.  In this regard, Justice Stras’s opinion for the Court in Nelson is interesting, not because it adopts a hyper-textualist stance, but because it takes such pains to answer to its critics for declining to do so.  Nelson deals with Minn. Stat. 609.375, which criminalizes a person’s failure “to provide care and support” to a spouse or child.  The Court holds that the phrase “care and support” is ambiguous.  An unambiguous statute needs (theoretically) only to be applied; an ambiguous statute must be construed.  Textualists fret that the process of construction gives the opening to courts to substitute their own judgments about what the law should be.  It takes cojones these days for a conservative-leaning judge to find a statute ambiguous.

Justice Stras’s 2o-odd pages in support of his ambiguity finding are actually kind of a romp. We encounter legal doublets, the canon against surplusage, the canon of in pari materia, and DeMorgan’s Theorem, which states (in case you were wondering) that the negative of a conjunctive phrase is equivalent to the disjunction of the negated terms and the negative of a disjunctive phrase is equivalent to the conjunction of the negated terms. Justice Stras writes well, and there is something weirdly gripping about his uber-geeky analysis, like Carl Sagan expounding on The Bluebook.

I found the exchange between Justices Stras and Dietzen over the role of dictionaries particularly interesting.  The practice of decision-by-dictionary has grown in recent years, fueled in part by textualists’ insistence that the existence of dictionary definitions rebuts most arguments that words are ambiguous.  Justice Dietzen criticizes the majority for not applying the most common dictionary definition in its analysis (specifically, of “care,” the most common definition of which is “to worry”).  Justice Dietzen proposes, in effect, a most-literal-meaning rule.  But were Justice Dietzen’s rule applied, then “doublet” would denote Tyrion Lannister’s fitted jacket, and not, as Justice Dietzen uses the term, two ways of saying the same thing that reinforce its meaning.  Justice Stras responds that the relevant definition of a term depends on the context in which it is used.  This would seem too obvious for words, except that in an era of increasing formalism in legal interpretation, it is not too obvious.  Today, common sense needs a champion.

For all my reservations about textualism, though, I must confess I am jealous of statutory construction for its ability to command the Court’s attention.  Would that the Court would approach its Fourth Amendment docket with anything like the brio and intellectual curiosity that Justice Stras shows in Nelson.

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