A Republic, If You Can Keep It

by Neil Gorsuch

  Imagine you’re hauled into court, facing up to a decade in federal prison. The prosecutor tells you that you’ve violated a federal criminal statute prohibiting a previously convicted felon from possessing a firearm. But wait, you say, you didn’t know you were a felon. In fact, when you faced trouble with the law before, the judge expressly said that you were not convicted of a felony; that it was only a misdemeanor. So you decide to look up the statute the prosecutor has now charged you with violating—surely you can’t be guilty. And, aha! The statute prohibits individuals from “knowingly” being both (1) a felon and (2) in possession of a firearm.

  That doesn’t matter, the prosecutor replies. She asks the judge to look to the statute’s legislative history—the flotsam Congress leaves in its wake when it pushes through a new law. The legislative history here, she says, shows that when it adopted the felon-in-possession law, Congress was seeking to recodify an older statute. And that older statute only required the government to prove that the defendant knew he possessed a firearm—not that he knew he was a felon. The prosecutor says something called a “House Report” makes all this clear. And that’s not all, she says. Proving that you knew you were a felon would be too burdensome on the government as a matter of policy, in light of the growing problem of gun violence. For these reasons, the prosecutor urges, it just wouldn’t make sense to read the statute as written. In the end, the court agrees and you’re headed to federal prison.

  Sound far-fetched? This scenario comes pretty close to what happened in United States v. Games-Perez, a case I considered on the Tenth Circuit. A majority of my court relied on legislative history to determine the purpose of the statute and then read that purpose into the statute to rule against the defendant, Mr. Games-Perez. Lawyers often call this interpretive approach “purposivism.”

  I dissented. Everyone agreed that the word “knowingly” modified the second element, so the government had to prove the defendant knowingly possessed the gun. And if that’s so, I asked, how could the statute’s knowledge requirement leapfrog over the first element and only touch down at the second? Any ordinary reader, I argued, would understand that the statute as written requires the government to prove the defendant’s knowledge of not just the second statutory element but the first as well. With all this focus on text, it’s no surprise that this approach to statutory interpretation is often called “textualism.”

  At my confirmation hearing for the Supreme Court, one senator took a different view still. Commenting on Mr. Games-Perez’s case, she said simply: “[H]e was a felon with a gun and his probation [officer] instructed him that he was not to carry that weapon. So I have very strong feelings about that.” In reply, I tried to explain that “I am just trying to follow the plain words of the law—‘knowingly be a felon in possession.’ ” The senator’s response? “I do accept that that is your view….It is not my view….He was a felon.” Never mind the text or even unexpressed potential legislative purposes. On this account, whatever ruling leads to the best social consequences should and must be the law. By this point, you can probably guess what this approach to statutory interpretation is sometimes called: “consequentialism.”

  As Games-Perez illustrates, how judges go about interpreting statutes matters a great deal. While my Court’s constitutional law docket gets the most play in the media, the truth is that we spend the bulk of our time trying to make sense of Congress’s handiwork in cases that rarely capture press attention but still have major impacts on the lives of our fellow citizens. And which approach a judge adopts in interpreting a statute often makes all the difference.

  Of course, there are variations within the competing schools of thought I’ve outlined and others besides them. As Professor William Eskridge has put it, “[T]heories of statutory interpretation have [bloomed] like dandelions in spring.” So anyone seeking to enter this field has to proceed with some trepidation. Still, I think we’ve now endured enough springs—and enough debate—to be able to distinguish the blossom from the weeds. Even many who once subscribed to other theories are happy these days to call themselves textualists. Tonight, I’d like to argue, they do so for good reasons.

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  IT SEEMS TO ME that the place to start is with the Constitution. After all, the judge’s highest obligation is to preserve and protect its promises. And while the Constitution doesn’t speak directly to the question of statutory interpretation, I think its structure tells us quite a lot.

  Take these three clues.

  First, Article I of the Constitution endows Congress (and only Congress) with “[a]ll legislative Powers” granted to the federal government. The legislative power, the framers understood, is the power to create prospective new rules of general applicability to govern private conduct. This is, as Hamilton put it, the power to “prescribe[] the rules by which the duties and rights of every citizen are to be regulated”—the power to make value judgments concerning morals, on how to weigh competing goods, and which to preference.

  Second, the Constitution describes a demanding process for the creation of new laws. Before the people’s liberties may be restricted by law, a statute must survive the gauntlet of two popularly accountable houses of Congress. Even then, it must still receive the assent of an electorally accountable president (or win a legislative override). Pretty plainly, lawmaking is supposed to be a very public and very hard business, not something that can be accomplished in the privacy of chambers or by the flick of a pen.

  Third, when new laws do emerge they must be honored. All people deserve their benefit, not just the popular or powerful. For that reason, Article III assigns the resolution of “cases” and “controversies,” including those involving the application of federal statutes, not to popularly accountable politicians but to independent judges with life tenure. Nor may judges play any part in the legislative process. When it comes to statutes, Article III authorizes judges only to ensure that the laws Congress adopts are applied neutrally—“without respect to persons,” as our federal judicial oath says.

  Collectively, this separation of powers seeks to foster the rule of law. The vesting clause of Article I ensures that the legislature alone may make law and that it usually must do so only with prospective application and only in terms applicable to all persons. The demand that all legislation must survive two separate houses and presidential review guarantees that these laws will be debated in public and by electorally accountable representatives so the people will know and have a chance to shape the rules they must live by. And an insulated judiciary exists so these new rules will be neutrally applied to all persons without regard to their present popularity. In a society governed by the rule of law, the people can expect to come upon the law in the books; the law does not come upon the people out of nowhere.

  Given all this, it seems to me that any theory of interpretation seeking to comply with the Constitution and the values it seeks to serve must respect the divide between making legislation and interpreting it; honor the grueling legislative process, not seek to invent new shortcuts; and protect the people from political pressures when it comes to the application of the laws in their cases and controversies.

  Textualism does all this. When interpreting statutes, it tasks judges with discerning (only) what an ordinary English speaker familiar with the law’s usages would have understood the statutory text to mean at the time of its enactment. Rather than beginning with legislative history or making economic hypotheses about social consequences, a textualist starts with dictionary definitions, rules of grammar, and the historical context in which a law was adopted to see what its language meant to those who adopted the law. In this way, textualism offers a known and knowable methodology for judges to determine impartially and fix what the law is, not simply declare what it ought to be—a method to discern the written law’s content without extraneous value judgments about persons or policies.

  Maybe the most prom
inent interpretive tools used by textualists are the so-called “canons of construction.” But don’t let the arcane name fool you. The canons are little more than commonplace rules of English usage and grammar—like the rule that the verb “includes” followed by a list introduces examples and not an exhaustive list. So when I say that my colleagues include Justice Sotomayor and Justice Thomas, everyone knows that I didn’t mean to exclude Justice Breyer.

  Using preexisting, neutral, and objective interpretive tools like these ensures that the people can discern with some certainty what the law demands of them. It prevents, too, any agent of the government from twisting statutory terms to help those with deep pockets or harm the least among us. Celebrities and traitors alike are subject to the rule of the last antecedent or the rule that inclusion of one thing implies the exclusion of others. Rules of grammar play no favorites.

  Textualism, too, holds the legislature to the constitutionally prescribed processes for making new law. Textualism honors only what’s survived bicameralism and presentment—and not what hasn’t. The text of the statute and only the text becomes law. Not a legislator’s unexpressed intentions, not nuggets buried in the legislative history, and certainly not a judge’s policy preferences. Textualism appreciates this. As Justice Jackson explained, “[I]t is only the words of the bill that have presidential approval, where that approval is given. It is not to be supposed that, in signing a bill, the President endorses the whole Congressional Record. For us to undertake to reconstruct an enactment from legislative history”—or, you might add, from its underlying policy goals—is, as Jackson put it, “merely to involve the Court in political controversies which are quite proper in the enactment of a bill but should have no place in its interpretation.”

  There’s more here. Bicameralism and presentment effectively impose a supermajority requirement on new laws. Often, even small minority groups can stop the majority from acting or insist on concessions in exchange for needed votes. So when judges do anything other than interpret statutes according to the ordinary meaning of their terms, they risk undoing carefully wrought compromises and robbing political minorities of their constitutionally afforded bargaining chip, handing a victory to a faction that couldn’t convince others to go as far as they’d like in the legislative arena.

  And there’s still another important point nested in here. Much of the value of bicameralism and presentment lies in the seemingly paradoxical fact that it allows for results less coherent, principled, or maximal than those produced by judicial power. A statute may not always look rational to the outsider; its premises may not always proceed to a neat logical conclusion. But that’s not a problem crying out for a judicial solution; that’s part of the genius of the legislative process. A statute represents the work of a wide swath of the people’s representatives and reflects compromises both complex and crude so that a large nation might live together in peace. Meanwhile, judicial decisions aren’t about compromise: Someone must win and someone must lose. Judges aren’t supposed to compromise principle but reach their decisions through the consistent application of logical premises to a natural end. The judicial process, moreover, doesn’t invite participation by the whole of the people but only those few parties who have standing and can afford to litigate. So allowing judges to enforce something other than what can be found in, yes, often messy statutory texts risks denying society an important tool for releasing social pressures in a large republic, replacing delicate legislative trade-offs with maybe more rational but often rigid judicial syllogisms that lack the democratic provenance the Constitution demands.

  It’s easy enough to see, too, how textualism fits with an insulated judiciary. The founders afforded the judiciary the extraordinary protections they did because (and only because) they expected judges to decide cases using neutral interpretive techniques. And, in fact, many of the techniques embodied in the canons of construction that textualists use today were pretty ancient even by the time of the founding and familiar to the framers. The colonial and English law books were crammed with cases using them. Nothing about textualism is new; it is what was expected.

  Meanwhile, if judges were free to disregard these traditional rules of statutory construction in order to further some hidden purposes or to promote their own views of the social good, what would make them worthy of life tenure and salary protections? I cannot think of a good reply—and neither could William Blackstone. If the law is left only to what can be found “in the breast of the judge,” he wrote, it would only serve to “make every judge a legislator.” Who, after all, would hire nine people to write laws for a continental nation and then insulate them from any electoral accountability? Let alone pick for the job nine lawyers from fancy law schools, with a majority from East Coast urban centers? That sounds more like the monarchy the Constitution rejected than the republic it ordained.

  Textualism fits with an insulated judiciary in another way as well. Judges are more likely to fulfill their assigned mission of protecting disfavored persons from intemperate majorities when they can point to a neutral interpretive method to support their decisions. They can say, “I didn’t rule against you because I disagree with your values and goals, but because the law required me to.” Unfortunately, history has proven time and time again that when judges abandon neutral interpretive rules and allow outside considerations to infect their work—take Dred Scott and Korematsu, to name just a couple of examples—it becomes all the harder for them to stand firm against the weight of majoritarian pressures.

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  OF COURSE, CHALLENGES CAN be leveled at textualism. But, to my mind at least, a careful inspection of the leading charges only serves to confirm its case.

  Some say that statutes should be treated by judges more or less like the common law. Perhaps no one has pressed the point more thoughtfully than Judge Guido Calabresi in his book A Common Law for the Age of Statutes. As I understand it, the essence of this position is that judges should update statutes when they grow out of touch with the legal topography. In his view, the “judicial Power” preserved by the Constitution includes the power to interpret statutes in a common law manner; tweaking a statute just a little when needed so that it might work more efficiently. Perhaps even sometimes nullifying an otherwise constitutional statute if it has become too much of an outlier in the legal fabric.

  Now, I confess that I agree to an extent with this argument’s premise. Surely the “judicial Power” bestowed upon federal courts in the Constitution includes the power of common law adjudication in some circumstances. But, respectfully, I do not see how Judge Calabresi’s conclusion follows. A federal judge’s power to expound the common law exists only in a relatively few arenas—admiralty law, for example. And the judge’s common law power does not extend to those arenas where Congress has prescribed rules of decision by statute.

  Neither is this simply a problem of labels. As Professor Samuel Estreicher points out, equating common and statutory law ignores critical differences between them. The common law derives its legitimacy in no small part from ensuring “consisten[t] and principled” rulings by judges. Statutes, by contrast, derive their legitimacy from following the Constitution’s process for creating new legislation. They are valid even if their rationales seem unpersuasive to judges or stick out like a sore thumb from surrounding doctrine; indeed, as we have seen, the compromise nature of statutes is one of their key virtues. And those compromises reached in the political sphere are supposed to be revisable only in that same sphere. At bottom, I think that Professor Estreicher is exactly right: Judge Calabresi’s “vision of the courts’ role in the legal process—as guarantors of an overarching coherence in the legal fabric, irrespective of whether the rules are judge-made or forged in legislative chambers—contemplates a common law superseding legislative will and threatens a profound displacement of legislative initiative and, ultimately, accountability.”

  Others level a different
objection to textualism. They complain that textualism does not yield determinate answers. Some versions of this critique, most notably ones developed by critical legal theorists, posit that all texts are radically indeterminate, and that meaning is always and ultimately controlled by the interpreter, not the text itself.

  While this argument perhaps contains a nugget of truth, I’d like to suggest that it’s mostly fool’s gold. Words have meaning, and texts are not all or usually indeterminate. Ask most any federal judge and I bet they will tell you what Judge Ray Kethledge has said so well: “[S]tatutory ambiguities are less like dandelions on an unmowed lawn than they are like manufacturing defects in a modern automobile: they happen, but they are pretty rare, given the number of parts involved.”

  Obviously, there will be some close cases. And in those close cases we can expect that lawyers and judges of good faith will debate vigorously what the traditional tools of statutory interpretation suggest about a particular text’s meaning. But at least when we use the value-neutral tools of textualism the dispute remains a distinctly legal one carried out in legal terms. Textualism allows us to assess and critique the work of others on objective terms too. Rather than arguing that an opposing party’s position yields bad social policy and praying the judge sees social policy the same way we do, we can say an opposing party misapplies the canon that words are known by the company they keep, or seeks to interpret a statute in a way that causes a term to be unnecessarily superfluous, or violates some other traditional rule of sound interpretation.

  Admittedly, there will be those rare occasions when the statutory manufacturing defect is so grave that everyone will agree that stubborn ambiguity remains even after their careful application. But even then textualists aren’t left impoverished. The law has long encountered this sort of problem and it has long since adapted answers. Ancient canons of construction and traditional rules of procedure tell judges how to handle these situations too. By way of illustration, consider a few examples. Start with the rule of lenity. Lenity teaches us that, when an ambiguity remains in a penal statute after the traditional interpretive tools are exhausted, the tie goes to liberty and the defendant—not to the prosecutor and prison. In even more extreme circumstances—when a statute is so ambiguous that a judge simply cannot divine its meaning consistent with the judicial role—textualists have long employed the void for vagueness doctrine as a backstop. In that case, the judge must stop enforcing the statute altogether rather than seek to continue by making it up. And if a judge cannot know whether or not a statute applies to certain conduct, then the party bearing the burden of persuasion must lose.