Textualism as fair notice

Harvard Law Review

Volumn 123, Issue 2, 2009, Pages 542-563

[No Author Info available]

Author keywords

[No Author keywords available]

Indexed keywords

EID: 76649104353     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (115)

1. See. generally ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH (1962).
2. Other methodologies' failure to consider fully the fair notice argument is beyond the scope of this Note. Yet, fair notice rarely receives any more than a cursory mention within statutory interpretation literature generally. This Note's narrow conclusion is that textualism should more aggressively justify itself on fair notice grounds. However, one of this Note's fundamental premises -that fair notice is an important ground of argument - carries the implication that all methods should seek to justify themselves on the basis of fair notice. Thus, even those who take issue with this Note's endorsement of textualism should agree that fair notice deserves a more prominent role in justifying all interpretive methodologies.
3. Roscoe Pound, Theories of Law, 22 YALE L.J. 114, 117 (1912).
4. See id.
5. See id.
6. at 119-120 (identifying Cicero's writings as the relevant turning point from the Greco-Roman period of legislation to the "golden age of juristic law-making,"
7. i d. at 120).
8. Professor Pound's article provides an excellent account of the fluctuating importance afforded to the fair notice requirement throughout Western legal history. This fluctuation slightly undercuts the argument that the fair notice principle has been recognized throughout Western history. Yet, it is undeniable that the principle has its roots in the foundation of Western civilization - GrecoRoman democracy - and has experienced unceasing prominence since the early years of AngloSaxon rule in England. Therefore, for purposes of establishing its importance to the American legal system, suffice it to say that fair notice has been emphasized by all relevant cultures.
9. R.S. MYLNE, THE CANON LAW 26-27 (1912) (quoting Decretum Gratiani).
10. 2 ST. THOMAS AQUINAS, SUMMA THEOLOGICA pt. I-II, q. 90, art. 4, at 995 (Fathers of the English Dominican Province trans., Christian Classics 1981) (1948).
11. Id.
12. For a brief but excellent account of the Enlightenment's influence on the Founding generation, see generally GORDON S. WOOD, REVOLUTIONARY CHARACTERS 11-28 (2006).
13. MICHAEL P. ZUCKERT, LAUNCHING LIBERALISM: ON LOCKEAN POLITICAL PHILOSOPHY (2002) (describing Locke's influence on William Blackstone, the American Founders, and modern liberal political theorists).
14. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 83-84 (Richard H. Cox ed., Harlan Davidson, Inc. 1982) (1690).
15. Modern legal theorists have also emphasized the promulgation principle as essential to the rule of law. In the modern American legal tradition, Professor Lon Fuller provides the most prominent argument for the promulgation aspect of fair notice. In The Morality of Law, he lays out his conception of the rule of law, which includes a fair notice requirement. In articulating his version of the requirement, he explains that failure to promulgate the law "does not simply result in a bad system of law; it results in something that is not properly called a legal system at all."
16. LON L. FULLER, THE MORALITY OF LAW 39 (1964). Fuller thus presents a strikingly robust view of fair notice by denying any legal legitimacy in its absence. By his account, the very enterprise of law depends on citizens having knowledge of the laws that will govern them.
17. U.S. CONST, art. I, § 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed.");
18. id. art. I, §10, cl. 1 ("No State shall. . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts . . . .").
19. 3 U.S. (3 Dall.) 386 (1798).
20. James Iredell, Answers to Mr. Mason's Objections to the New Constitution, in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES 333, 368 (photo. reprint 2000) (Paul Leicester Ford ed., Brooklyn 1888). His full defense was as follows: My ideas of liberty are so different from those of Mr. Mason, that in my opinion this very prohibition is one of the most valuable parts of the new constitution. Ex post facto laws may sometimes be convenient, but that they are ever absolutely necessary I shall take the liberty to doubt, till that necessity can be made apparent. Sure I am, they have been the instrument of some of the grossest acts of tyranny that were ever exercised, and have this never failing consequence, to put the minority in the power of a passionate and unprincipled majority, as to the most sacred things, and the plea of necessity is never wanting where it can be of any avail. This very clause, I think, is worth ten thousand declarations of rights, if this, the most essential right of all, was omitted in them. A man may feel some pride in his security, when he knows that what he does innocently and safely to-day in accordance with the laws of his country, cannot be tortured into guilt and danger to-morrow.
21. Id.
22. THE FEDERALIST No. 44, at 250 (James Madison) (Clinton Rossiter ed., 1999).
23. 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION § 1398, at 306 (photo. reprint 2001) (Boston, Little, Brown & Co. 3d ed. 1858).
24. See Calder, 3 U.S. (3 Dall.) at 390-92 (opinion of Chase, J.) (applying the State Ex Post Facto Clause and holding that it only applies to criminal cases); id. at 396 (opinion of Paterson, J.);
25. id. at 400 (opinion of Iredell, J.);
26. see also Collins v. Youngblood, 497 U.S. 37, 41 (1990) ("Although the Latin phrase 'ex post facto' literally encompasses any law passed 'after the fact,' it has long been recognized by this Court that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.").
27. 27 U.S. (2 Pet.) 380 (1829).
28. See id.
29. app. 1, at 687 (Johnson, J.) ("For by placing 'ex post facto laws' between bills of attainder, which are exclusively criminal, and laws violating the obligation of contracts which are exclusively civil, it would rather seem that ex post facto laws partook of both characters, was common to both purposes.");
30. see also I WILLIAM WlNSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 324-51 (1953).
31. But see John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 YALE L.J. 1663, 1710 (2004) ("Yet (at least if Blackstone is to be believed), a reasonable person conversant with the relevant linguistic and cultural conventions would surely have understood [the Ex Post Facto Clause's] technical meaning to exclude retroactive civil statutes."). At the Convention, the delegates were split regarding whether ex post facto laws encompassed only criminal laws or civil laws as well. Compare
32. JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 640 (Adrienne Koch ed., 1966) ("Col: MASON moved to strike out from the clause (art I sect 9.) 'No bill of attainder nor any expost facto law shall be passed' the words 'nor any ex post facto law.' He thought it not sufficiently clear that the prohibition meant by this phrase was limited to cases of a criminal nature, and no Legislature ever did or can altogether avoid them in Civil cases."),
33. and id.
34. ("Mr. GERRY 2ded. the motion but with a view to extend the prohibition to 'Civil cases,' which he thought ought to be done."), with id. at 547 ("Mr. DICKENSON mentioned to the House that on examining Blackstone's Commentaries, he found that the terms, "ex post facto" related to criminal cases only; that they would not consequently restrain the States from retrospective laws in civil cases, and that some further provision for this purpose would be requisite." (footnote omitted)). In his Commentaries, Joseph Story includes civil and criminal retroactive laws under the general heading of ex post facto laws and acknowledges that "[a]s an original question," such a reading of the Constitution's ex post facto prohibitions would deserve "grave consideration." STORY, supra note 17, §1345, at 240. But he then goes on to explain that the "current of opinion and authority" in the United States has settled on a definition of the clauses that includes only criminal laws.
35. Id.
36. Admittedly, this statement rests on somewhat shaky grounds from a textualist perspective. One might argue that the familiar expressio unius est exclusio alterius canon of construction would lead a textualist to the conclusion that the Founders only cared about fair notice in two particular areas of law: criminal law and contract law. Cf. Manning, supra note 20, at 1722-49 (arguing that the precision of the Eleventh Amendment's textual prohibition on suits against states by citizens of other states necessarily implies that suits against a state by citizens of that state are permissible under the Constitution);
37. John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 HARV. L. REV. 2003 (2009) [hereinafter Manning, The Generality Problem] (presenting a textualist critique of the Court's practice of inferring a free-floating federalism principle from various provisions of the constitutional text). This Note does not suggest that the Court should craft some free-floating fair notice principle or expand the traditional scope of the Ex Post Facto Clauses. Rather, this Note seeks to demonstrate that aspects of the constitutional text suggest that the Founders were concerned with the traditional fair notice requirement, which these clauses in fact demonstrate regardless of the concrete doctrine that flows from their prohibitions.
38. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 270-71 (1994);
39. cf. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17 (1976).
40. Landgraf, 511 U.S. at 266.
41. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S. Ct. 2455, 2463 (2006).
42. I JEREMY BENTHAM, Essay on the Promulgation of Laws, and the Reasons Thereof, in THE WORKS OF JEREMY BENTHAM 155, 157 (John Bowring ed., Edinburgh, William Tait 1843).
43. See Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68 (1910) ("[Ijnnocence cannot be asserted of an action which violates existing law, and ignorance of the law will not excuse.");
44. see also United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971) ("The principle that ignorance of the law is no defense applies whether the law be a statute or a duly promulgated and published regulation.").
45. See, e.g., Lambert v. California, 355 U.S. 225 (1957).
46. See Shevlin-Carpenter, 218 U.S. at 68 (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (opinion of Chase, J.)).
47. SAMUEL PUFENDORF, On the Law of Nature and of Nations, in THE POLITICAL WRITINGS OF SAMUEL PUFENDORF 93, 126-127 (Craig L. Carr ed., Michael J. Seidler trans., Oxford Univ. Press 1994) (n.d.).
48. See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1179 (1989);
49. cf. Flores-Figueroa v. United States, 129 S. Ct. 1886, 1895 (2009) (Scalia, J., concurring in part and concurring in the judgment) (comparing the use of legislative history for expanding criminal liability under a statute to Caligula's practice of writing laws in small characters and hanging them on high pillars).
50. See, e.g., Hill v. Colorado, 530 U.S. 703, 732 (2000).
51. See, e.g., McNally v. United States, 483 U.S. 350, 359-60 (1987);
52. McBoyle v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.);
53. see also United States v. Santos, 128 S. Ct. 2020 (2008) (Justices Scalia and Alito disputing the applicability of the rule of lenity).
54. United States v. Williams, 128 S. Ct. 1830, 1845 (2008);
55. see also Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982). 34 See BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996).
56. See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION 3, 17 (Amy Gutmann ed., 1997) (comparing the use of legislative history to Nero's practice of placing edicts too high for citizens to see).
57. For a helpful primer on public choice theory in general, see DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION (1991).
58. See generally Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533 (1983).
59. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS 1378 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (1958).
60. Manning, The Generality Problem, supra note 21, at 2011.
61. Textualists do not deny that statutes have purposes or that a statute's purpose can influence how a judge should interpret the statute.
62. See, e.g., John F. Manning, What Divides Textualists from Purposivists?, 106 COLUM. L. REV. 70, 84-85 (2006).
63. Rather, a textualist would limit the use of purpose to interpreting ambiguous provisions of the statute, and certainly would never allow purpose to control precise or otherwise clear text.
64. See id
65. .; see also Manning, supra note 20.
66. See Manning, The Generality Problem, supra note 21, at 2014 ("[Flavoring the legislative spirit or purpose over the plain terms of a statute . . . risks disregarding the fact that members of Congress must sometimes accept half a loaf in order to get legislation through a complex process with multiple veto points.").
67. Justice Thomas recently made this point in the context of implied preemption, which has to do with democratic legitimacy vis-à-vis states. He said that implied preemption is democratically illegitimate because it fails to recognize the inherent limits in legislation that necessarily result from compromise.
68. See Wyeth v. Levine, 129 S. Ct. 1187, 1215-1216 (2009) (Thomas, J., concurring in the judgment).
69. Manning, The Generality Problem, supra note 21, at 2045.
70. See, e.g., Clinton v. City of N.Y., 524 U.S. 417 (1998) (holding that the line-item veto violated the bicameralism and presentment requirements of Article I of the Constitution); INS v. Chadha, 462 U.S. 919 (1983) (holding that the legislative veto violated bicameralism and presentment).
71. This is not to suggest that Justice Scalia's sole argument for textualism is the judicial restraint point. Indeed, he also makes the legislative process argument. See Scalia, supra note 35, at 24-25, 35. He also alludes to the importance of fair notice.
72. See id. at 17 ("[I]t is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated."). Nevertheless, the main thrust of Justice Scalia's argument is about the power of textualism to cabin judicial behavior within its proper bounds. Therefore, for purposes of this taxonomy, this Note will speak of Justice Scalia as a proponent of the judicial restraint argument for textualism.
73. This qualification is based on the fact that judicial common law-making power persists in a few confined areas of federal law. See generally RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 607-742 (6th ed. 2009). The Supreme Court has crafted federal common law in multiple contexts.
74. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) (federal common law of foreign relations); Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) (federal common law in areas of unique federal concern);
75. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938) (federal common law of interstate disputes); Chelentis v. Luckenbach S.S. Co., 247 U.S. 372 (1918) (federal common law of admiralty);
76. see also Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245 (1996);
77. Henry J. Friendly, In Praise of Erie - And of the New Federal Common Law, 39 N.Y.U. L. REV. 383 (1964);
78. Henry P. Monaghan, The Supreme Court, 1974 Term - Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 10-17 (1975);
79. Note, The Federal Common Law, 82 HARV. L. REV. 1512 (1969).
80. Cf. Teague v. Lane, 489 U.S. 288, 300-301 (1989) (plurality opinion) (recognizing judicial decisions as embodying a generative law declaration power).
81. Some argue that textualists' use of these purported objective tools often empowers them to engage in the very judicial activism they claim to prevent. Others reject the idea that the use of interpretive canons can actually be a neutral exercise, based on the notion that "there are two opposing canons on almost every point." Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 VAND. L. REV. 395, 401 (1950).
82. But see Scalia, supra note 35, at 27 ("Every canon is simply one indication of meaning; and if there are more contrary indications (perhaps supported by other canons), it must yield. But that does not render the entire enterprise a fraud - not, at least, unless the judge wishes to make it so.").
83. Scalia, supra note 35, at 17-18.
84. See id
85. . at 18 ("When you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant, and are assured that there is no necessary connection between the two, your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean - which is precisely how judges decide things under the common law.").
86. See THE FEDERALIST NO. 51, at 289 (James Madison) (Clinton Rossiter ed., 1999) ("[S]eparate and distinct exercise of the different powers of government... to a certain extent is admitted on all hands to be essential to the preservation of liberty.").
87. See generally ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY (2006).
88. For an especially accessible articulation of his pragmatic method, see Richard A. Posner, The Supreme Court, 2004 Term - Foreword: A Political Court, 119 HARV. L. REV. 31 (2005).
89. See generally RICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY (2003);
90. RICHARD A. POSNER, OVERCOMING LAW (1995);
91. Richard A. Posner, What Has Pragmatism To Offer Law?, 63 S. CAL. L. REV. 1653, 1657-58 (1990) (arguing that "[t]he judge is not a finder, but a maker, of law," id. at 1657, and "interpretation is a creative rather than a contemplative task,"
92. id. at 1658).
93. For an analogous account that focuses on the pragmatic consequences of an interpretive methodology, see Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. CHI. L. REV. 636 (1999).
94. But see John F. Manning, Constitutional Structure and Statutory Formalism, 66 U. CHI. L. REV. 685, 686 (1999) (responding to Professor Sunstein by arguing that "before testing whether a default rule promotes any particular interpretive value, we must first ascertain whether the Constitution either enjoins or permits the judiciary to recognize such a value as worthy of promotion").
95. See Posner, What Has Pragmatism To Offer Law?, supra note 53, at 1664 ("In approaching an issue that has been posed as one of statutory 'interpretation,' pragmatists will ask which of the possible resolutions has the best consequences, all things (that lawyers are or should be interested in) considered . . . .").
96. See POSNER, LAW, PRAGMATISM, AND DEMOCRACY, supra note 53, at 59-60 ("[D]espite the emphasis on consequences, legal pragmatism is not a form of consequentialism .... There are bound to be formalist pockets in a pragmatic system of adjudication, notably decision by rules rather than by standards. Moreover, for both practical and jurisdictional reasons the judge is not required or even permitted to take account of all the possible consequences of his decisions.").
97. See VERMEULE, supra note 52, at 85 ("[E]veryday pragmatism is a perfectly valid version of consequentialism; indeed, it is the version I am suggesting here.").
98. This classic example can be found in many explanations of textualism,
99. see, e.g., Manning, The Generality Problem, supra note 21, at 2010, and was first employed by Judge Easterbrook in his seminal article, Statutes' Domains, supra note 37, at 535.
100. See United States v. LaBonte, 520 U.S. 751, 757 (1997) (using dictionaries to determine the "ordinary meaning" of "maximum"). As prominent textualists have explained, however, recourse to dictionary definitions typically does not itself resolve the entire interpretive question - the defined word must still be understood in its context.
101. See, e.g., John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2456-59 (2003).
102. See generally LUDWIG WITTGENSTEIN, THE BLUE AND BROWN BOOKS (1958).
103. See Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 67 (1994) ("[S]tatutory text and structure, as opposed to legislative history and intent (actual or imputed), supply the proper foundation for meaning.").
104. See David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. REV. 921, 943 (1992) ("[T]wo interrelated values that are served [by the canons of construction] are predictability and fair notice."). That said, whether the canons provide much clarification is also controversial.
105. See, e.g., Llewellyn, supra note 48, at 401-406
106. See Caleb Nelson, What Is Textualism?, 91 VA. L. REV. 347, 367, 372 (2005);
107. cf. Larry Alexander & Saikrishna Prakash, "Is That English You're Speaking?" Why Intention Free Interpretation Is an Impossibility, 41 SAN DIEGO L. REV. 967, 984-85 (2004) (rejecting the idea that textualism provides any meaningful fair notice benefit over other methods of statutory interpretation).
108. Cf. Scalia, supra note 35, at 17 (comparing the use of legislative history to Nero's practice of "posting edicts high up on the pillars, so that they could not easily be read").
109. Cf. id. at
110. 27 (explaining that conflict between canons only means that one of the two must yield and suggesting that determination of which canon must yield is not an arbitrary exercise).
111. See id. at 26 (describing the noscitur a sociis canon).
112. This Note leaves open, for the time being, whether there are additional grounds on which textualism can or should be justified. One possible ground is that the Constitution requires or prefers textualism.
113. See John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. I (2001);
114. see also John F. Manning, Response, Deriving Rules of Statutory Interpretation from the Constitution, 101 COLUM. L. REV. 1648 (2001).
115. But see William N. Eskridge, Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 COLUM. L. REV. 990 (2001).