Napolitano’s Criticism of a Law She Hasn’t Even Read — And the Implications For Applying “Intentionalism” to Legal Interpretation
Numerous readers have asked me to weigh in on the recent news that Janet Napolitano and Eric Holder have criticized the Arizona immigration law without even having read it:
Homeland Security Secretary Janet Napolitano, who has been a vocal critic of the new Arizona immigration law, told Sen. John McCain (R-Ariz.) and the Senate Homeland Security and Governmental Affairs Committee Monday that she had not reviewed the law in detail, but nevertheless repeated criticism she made in April on ABC’s “Good Morning America” that the law is a “bad law enforcement law.”
Last week, Attorney General Eric Holder said he hadn’t read the law either, although he too has criticized it. He told the House Judiciary Committee he’d “expressed concerns” about the Arizona law, “on the basis of what I’ve heard about the law” from newspaper and TV reports. Holder has questioned whether the law is constitutional and has said the federal government may challenge it in court.
It is, of course, outrageous to criticize a law you haven’t read — especially if the law simply allows local enforcement of your own federal law enforcement responsibility. Clearly, Napolitano wants no help enforcing immigration laws, because she doesn’t think enforcing immigration laws is any of sort of priority. That is the unsurprising takeaway from this story.
A secondary point, however: look how upset we get that she is merely criticizing the law without having read it. What about all the lawmakers who pass laws in this country without having read them?
And another subsidiary point: what does this tell you about the validity of the arguments of those who would have judges interpret laws according to the intentions of lawmakers who haven’t even read the law?
If Janet Napolitano had been an Arizona lawmaker voting “yea” on the Arizona law — but she hadn’t read it — would her intent matter a good goddamn to the proper interpretation of the law?
I say no.
The following example helps illustrate why intentionalism is a very valuable insight in everyday communication, but a useless concept for interpreting the meaning of legislation:
Assume the black sheep of the family shows up out of the blue and asks to stay the night. We’ll call him “Cletus” because that sounds disreputable. (No offense to any “Cletus” who might be reading.) One night at dinner, Cletus leans over and whispers to a two-year-old, who turns to his mother and says, with a big smile: “Mommy, you’re a fucking moron.”
In this everyday situation, “textualism” would lead you to the wrong interpretation. Intentionalism tells you that, while the “plain meaning” of that phrase is offensive, the two-year-old did not intend it that way. Therefore, the receiver of the communication should try to decide what the two-year-old meant in determining how to react — and will likely conclude that the child meant something like this: “Mommy, I love you.” The mother, interpreting properly, should not be angry at the child (but should toss the black sheep out on his ass). That is because, in a very meaningful sense, when spoken by the child, the words “you are a fucking moron” mean “I love you.”
Now consider an analogous situation in lawmaking. A staffer writes a provision filled with long, legal-sounding words, the “plain meaning” of which is the same as the meaning intended by the staffer: insurance companies may deny health coverage to small children on the basis of pre-existing conditions. His boss, the Congressman, votes for the law but never reads it. As he presses the “yea” button, his sole thought is: “I sure hope I get re-elected.”
This may well be the case for every single yahoo who votes “yea.”
If so, what does that provision mean? I submit to you that it means exactly this: insurance companies may deny health coverage to small children on the basis of pre-existing conditions. Is that because the original author intended that to be the meaning? No; the staffer’s intent clearly can’t trump that of the duly elected lawmakers. It is because that is the plain meaning of the provision. It is the fair reading that a reasonable audience would give to those words.
If we had judges interpreting that text instead to mean what the lawmakers intended, how would you fill in this blank for the lawmaker: “When I voted for this provision, I intended it to mean ________________.” There is no way to do it. Either the blank is left blank, or it is filled in with the phrase: “I hope I get re-elected.”
And that is the intent with virtually every law passed by Congress. There is scarcely a law on the books that has been read by the boobs who voted for it. If we rewrote the statutes according to legislative intent, they would read like the typewritten sheafs of paper typed out by Jack Nicholson in “The Shining” where Shelly Duvall walks down the stairs holding the bat — only instead of “All work and no play makes Jack a dull boy” the pages of the United States Code would read like this:
I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected. I hope I get re-elected.
It’s simply not workable, folks — and we haven’t even begun to address the problem where lawmakers do actually read a provision . . . and different groups of “yea” votes interpret it in diametrically opposed ways. There is no way to resolve disputes over intent in such a case other than by reading the plain text — which is the way that disputes over intention are solved. In writing.
So the next time you think about Janet Napolitano criticizing a law she hasn’t even read, ask yourself: if she had been one of the “yea” votes for the Arizona law, would we care what her intent was if she hadn’t bothered to read the law?
Patterico, the fundamental flaw in your argument is the assumption that everyone supports the “rule of law” from a conceptual standpoint.
Holder and others on the Left know their ideals can never be codified into law. Therefore, the only recourse is to allow judicial leeway in interpreting the law. Hence, what SB 1070 actually says is really irrelevant — so why bother to read it?
beer 'n pretzels (3d1d61) — 5/19/2010 @ 7:38 amExcellent point. Napolitano’s intent is immaterial, particularly when, as now, the statute is unambiguous. What’s more, Holder’s interpretation is wholly illegitimate because he has not even read the legislation. See Begay v. United States, 553 U.S. 137, 152 (2008) (Scalia, J., concurring) (”The Court supports its argument with that ever-ready refuge from the hardships of statutory text, the (judicially) perceived statutory purpose.”).
I notice that you still haven’t directly addressed my previous example: why is a textualist like Scalia permitted to look at legislative intent in one instance (administrative law), but not in another (criminal law)? What is the principled distinction to be drawn here?
Andrew (816244) — 5/19/2010 @ 7:47 amI think the clowns at the DOJ should start reading their own memos too.
JD (5e5cad) — 5/19/2010 @ 7:52 amI think you must be mistating Jeff’s case if you suppose he has any notion that a judge should go beyond the plain language of any statute, unless there is clear cause for an exception (absurd result, internal contradiction).
Even then, when the language is so ambiguous, he never argues anything but that the legislative history of the bill be considered when resolving the ambiguity. If that fails, the judge can rule the law is unenforceable.
If Joe the legislator has an idea of what he signed, and it is in conflict with the plain language of the statute, there is no going behind the plain language of the statute. If the bill is not what the legislature wanted to write into law, they have a remedy, which is to pass a revision. THe end.
Jeff never argues against this. What he says is that what a person meant to say is not necessarily what you think they said.
A judge has rules about interpreting laws, which give clear guidance and there exist remedies for misunderstanding.
It’s a formalized process for handling these disputes.
The argument is confused by talk about broader, elastic law in a constitution instead of specific legislative acts – interpretations of which have always been expected to be worked out by decisions having the effect of law. In that case, what has come before and why always matters.
SarahW (af7312) — 5/19/2010 @ 8:13 amlegislative intent in one instance (administrative law), but not in another (criminal law)? What is the principled distinction to be drawn here?
Scalia can’t look to legislative intent of ANY law unless he is considering broad questions about such law in general – if he is reviewing a particular statute its only when the plain meaning of the statute produces an absurd result or has internal condradictions or is ambiguous in a way that looking at the legislative history could resolve..
SarahW (af7312) — 5/19/2010 @ 8:17 amI think you must be mistating Jeff’s case if you suppose he has any notion that a judge should go beyond the plain language of any statute, unless there is clear cause for an exception (absurd result, internal contradiction).
I have sought a clear answer from him for weeks as to whether he believes a judge can be justified in ruling in accordance with the plain language of the statute even if he knows that the intent was different. There has been no clear answer. At times he has implied yes, and at other times he has implied no, and at other times he has quibbled with my definitions. If he could be a little clearer about his “case” that would help.
Patterico (c218bd) — 5/19/2010 @ 8:19 amI cannot get these pages to load beyond my last comment, which is likely a good thing for the rest of you.
JD (5e5cad) — 5/19/2010 @ 8:28 amDon’t take this as more than snark, but if legislators don’t read the bills they are voting on — and I doubt you could find any who read all of the ObamaCare bill — maybe the text isn’t a good indicator of the law’s meaning, either. So maybe Pelosi was right to say it had to be passed to find out what’s in it! 😉
Karl (f07e38) — 5/19/2010 @ 9:07 amIt will be obvious to the reader of the following that I am not a semanticist or philosopher. I am a retired lawyer who spent many years drafting and interpreting contracts. I also have an engineering degree with 10 years or so experience in that field before becoming a lawyer, and am very much biased in favor of what works in the real world.
I don’t mean to over-trivialize this argument, but it seems to me that a major problem with intentionalism is that it requires the interpreter in many if not most cases to read the mind of the speaker. Without some additional statement or signal of the speaker’s intent, this is well nigh impossible, particularly if the speaker is a legislature, and so might well have no mind to read.
Presumably people who draft statutes assign meanings to the words they use, and if they are both honest and interested in giving guidance to ordinary people they will assign those meanings in accordance with the generally accepted meanings that those ordinary people assign to them. I.e., the intent of the speaker is in agreement with the generally accepted meaning of the text.
When the text of a statute is the product of political compromise (and therefore the words used do not necessarily reflect the intent of every legislator who voted for the statute), to be fair any statement of additional intent should, in my view, clearly state the views of a majority of the legislators who voted for the bill if it is to have probative value for the purpose of guiding a judge who is trying to interpret the statute. Otherwise such statements would further confuse, rather than clarify, the intent of the collective “speaker.” It seems to me to be legislative malpractice for a legislator to vote for a bill that he has not read, or if he has read it, doesn’t understand what it means, because in either of those cases he can’t possibly have an intent with respect to the meaning of the statute.
In those cases where the additional statement of intent (i.e., “legislative history”) contradicts or casts doubt on the clearly stated generally accepted meaning of the text of a statute, I think a judge would be justified in ignoring the additional statement of intent, because it signals that the speaker of the additional statement is either a liar (i.e., he’s purposely misstating his intent for undisclosed reasons) or an idiot. In either case the additional statement of intent would not be reliable.
As to statutes that are not expressed in clear language and that cannot be interpreted using the generally accepted meanings of the words used, I would think it safer for society for the judge to declare the statute void for vagueness and punt it back to the legislature for another try, than to try to glean legislative intent from statements by some of the legislators who voted for it, and who may have political or other reasons for trying to game the system by introducing bias into the process of interpreting the statute. I think this principle is especially important when the statute creates a crime that is malum prohibitum as opposed to malum in se.
ExRat (ce6fe8) — 5/19/2010 @ 10:32 amPatte writes “It is, of course, outrageous to criticize a law you haven’t read – …” TRUE re any responsible adult, TRUE squared re any responsible lawyer, and TRUE cubed re any responsible office holder – of Homeland Security Secretary, U.S. Attorney General & U.S. President.
Sec. Napolitano, AG Holder & Pres. Obama (all lawyers) can not be that stupid. Thus one can only conclude that they act so recklessly or intentionally, because they are TRUE believers in open borders & world government and want to – and are out to – destroy the sovereignty of the United States of America. (One also has to question GW Bush & his administration because of his dereliction of the border & illegal immigration issues. Same re Bill Clinton.)
The Rule of Law and the sovereignty of the United States are clearly in jeopardy – and maybe lost – as the far left is quite far along in this plan. Our Rule of Law is almost totally without definition and has been lost – everything is POLITICS – and that is dangerous. We have a slow boiling, burning, ANARCHY – and we are reaching critical mass and the point of no return.
We can though turn it around – with courage and proper leadership. Arizona’s recent law is a demonstration of both – now it is up to good citizens to come to their aid and give them support.
Below is an August 2008 ‘Letter to the Editor’ of the California Lawyer Magazine (CLM), that I wrote and sent in reply to CLM’s August 2008 article “LET THEM IN: Three Recent Book Argue That Open borders Serve The National Interest.” Those book were: “Let Them In: The Case for Open Borders” (Gotham Books, 2008) by Jason L. Riley; “Opening the Floodgates: Why America Needs to Rethink Its border and Immigration Law” (New York University, 2007) by Kevin R. Johnson; and, “Beyond Citizenship: American Identity After Globalization” (Oxford University Press, 2008) by Peter J. Spiro.
CLM called me to verify that I wrote the letter and indicated it was considering publishing it. It however decided not to.
______
Letter to the Editor:
Gary L. Zerman (8a40d9) — 5/19/2010 @ 11:03 amThomas Brom’s “Let Them In, Over Taken By Events – O-B-E,” August, is spin. Spin out of control. First, America already generously Let’s Them In, granting legal resident status and naturalized citizenship every year, to about 2.5 million immigrants. Significantly more than any other nation.
Second, Mr. Brom’s “Let Them In” theme reminded me of the callous quip about a woman getting raped: “Hey, why fight it, just sit back, relax and enjoy it.” That theory’s a non-starter, readily proven again by the 1993 rape, then murder, of Jennifer Ertman (14) and Elizabeth Pena (16), by illegal alien gang member Jose Ernesto Medellin (now 33). Texas just executed him. More recent, there’s SF’s triple murder of the Bologna family in June 2008, LA’s murder of Jamiel Shaw, Jr., in March 2008, and Newark’s execution-style murders of three college students in August 2007. (Illustrative, not exhaustive.) All the product of insane sanctuary city policies coddling and harboring convicted criminal illegal aliens. City, county, state and fed officials – all have blood on their hands.
Third, Mr. Brom’s piece referred to three books advocating open borders, published in 2007-8. I call Mr. Brom and raise him: Michelle Malkin’s Invasion (2002), Victor Davis Hanson’s Mexifornia: A State of Becoming (2003) and Pat Buchanan’s State of Emergency (2006).
Fourth, what happened to – the Rule of Law? That America is a nation of laws, not men. That no man is above the law, and that’s what separates America from the rest of the world. Let them in? Open borders? Strange arguments coming from a lawyers’ magazine, but guess we’re just living in the world of Superman Bizarro.
Fifth, we have not been O-B-E, but in fact have had decades of deceit, denial, dysfunction and dereliction of duty (maybe by design NAFTA, NAU, SPP), from all three branches of our federal government. Example: Plyler v. Doe, 457 US 202 (1982), a 5/4 Brennan opinion that admitted the fed’s total failure on illegal immigration, flew in the face of Fong Yu Ting (cited in Brom’s piece, but curiously absent from Plyler), opened the floodgates (see fnt. 2 in Plyler dissent, estimating 3-12 million illegal aliens as of 1981), and denied Texas the natural law remedy of self help. Then California’s Prop 187, torpedoed by a single federal judge. Example: the 1986 bi-partisan Simpson-Mizzoli bill that graciously gave amnesty to 3 million+ illegal aliens, and promised American citizens that it would be – a one-time fix. Can you say Shamnesty? Because that was a fraud, fixed nothing and spawned another 12-20 million+ illegals. Example: the recent 5/4 USSC opinions of Boumediene v. Bush and Dada v. Mukasey, foolishly giving more rights and opening further our courts, to terrorist combatants and illegals, thus making even longer ques for Americans to use their own courts. (See “[Fed] Circuit Judges Decry Immigration Case ‘Tsunami’” by Tony Mauro, 8/12/08 Legal Times and “New Nightmare Census Projections Reveal CHAIN MIGRATION Still Choking Our Future” by Roy Beck, 8/14/08 NumbersUSA.) Example: The dereliction of Presidents Carter to G.W. Bush on this issue, most notably their failure to prosecute cheating employers who hire illegals and refuse to use E-Verify.
Separation of powers, the so-called checks & balances? Phooey! The Rule of Law? Phooey! We are trillions in debt, yet the politicos and judges never ask, who or how we will pay for their frolics. We get the shaft from all three branches, plus we get to pay the “check” for the actually not so cheaper labor. The same is true for too many state, county and city governments/officials (sanctuary cities); the media (Mr. Brom’s own “It’s why an editor… may choose to bury a story rather than put it on the front page.”); and, the big corp bandits & pirates (that out-source American jobs, hire the illegals and push for more H-1B visas to in-source more foreign workers). The Dems want more voters; the Repubs (and US Chamber of Commerce) want cheap labor. It can be argued, we are well down the road to anarchy. (See HBO’s The Second Civl War (1997).) But the Will of the People has always been clear: STOP IT! Most recently rising up to stop the bogus bi-partisan “comprehensive” shamnesty bill. Yet all ever required was leadership and integrity. To simply apply reason, enforce our existing laws, and follow the advice of Deputy Barney Fife (of Andy of Mayberry): “Nip it. Nip it. Nip it in the bud.” The situation then would have been – the problem that never was.
But that takes courage. Instead, our politicos have chosen to pick the low hanging fruit, and to come up with one scam, scheme and bogus compromise, after another. We must look in the mirror. We must ask: Are we still capable of governing ourselves? Because at present, America has no real Rule of Law – with 12-20 million illegal aliens, it would be foolish to argue otherwise. Fact is, everything has been reduced to politics. Because if baseball used to be America’s pastime, it can be readily argued that today, our pastime now is – lying, cheating, stealing & spin. And it’s everywhere. And it’s destroying our American constitution, country, communities, culture and courts. And it’s killing us.
Open borders – NO! Enforce our laws – YES! Si se puede!
Again – now it is up to good citizens to give the State of Arizona and the Rule of Law our support. GLZ.
Patterico, when you say that congress critters don’t read the laws, do you mean the markup language, or the actual legalese they put into the books? The reason I ask is that what’s clear in common English “We agree that I’ll buy that house from you for 100,000$” Is more complicated in the contract.
Now, is it appropriate for a judge to look at the markup language that was debated? Or should they confine themselves to the legalese? What if the ‘official law’ isn’t 100% clear? What if it isn’t 100% clear and it clearly seems to be contrary to what was intended or common sense?
One example would be a purchase order where my company promises to pay you 100 times what we had agreed on because we have the decimal point in the wrong place?
time123 (5250bd) — 5/19/2010 @ 11:30 amNo intent from conservatives. From Freedon Network’s coverage of the TX Bd of Ed hearings today (bold type mine):
“Kelly Shackelford, head of the Liberty Institute/Free Market Foundation, the Texas affiliate of the far-right Focus on the Family, is up. Shackelford argues that the words “separation of church and state” aren’t in the Constitution. Neither, we might say, is “fair trial,” “separation of powers” “checks and balances” and other basic constitutional principles. Shackelford thinks “separation of church” is being used to “abuse” the freedom of students. He wants students to contrast the intent of the Founders (or what he believes was the intent of the Founders) who wrote the Constitution with the phrase “separation of church and state.”
JEA (7f83c4) — 5/19/2010 @ 1:21 pmJEA, obviously you don’t understand the point you are attempting to ridicule.
First of all, you don’t understand the difference between the constitutional “principles” you list and the phrase “separation of church and state”. No surprise there. There are specific provisions that address those “principles”. There is no specific provision implementing “separation of church and state” rather there is a far narrower provision that has been expanded by judicial fiat.
Second, there is a large difference between constitutional interpretation and statutory interpretation. They are different animals.
SPQR (26be8b) — 5/19/2010 @ 1:33 pmJEA is consistent in its ability to not understand things, SPQR. It is one of its strengths.
JD (cc9633) — 5/19/2010 @ 3:11 pmHolder and Napolitano wouldn’t dare read the law because they would have more trouble finding fault with it.
Obama is saying that he has trouble with the enforcement of it, that it could lead to a violation of rights. Name one.
Arizona Bob (e8af2b) — 5/19/2010 @ 8:16 pmDidn’t JEA use to stick around to argue his indefensible points?
Icy Texan (892e7a) — 5/21/2010 @ 3:56 am