Fong, you are the most glorious fool to know! :]

> subway

ah yes, the chip that was not a chip...


thanks too, B, for the article - it certainly is an interesting topic and a well-expressed view. This was what I was trying to get at in a thread some while ago when asking about whether any law, expressed through the medium of language, can hope to have immutability, or whether this is another example of us stepping into a perpetually moving stream. Mr Scalia's name was prominent then too (though of course I would never *dream of posting a political view in these sacred groves)

Does this mean that there are some judges who do not work with a strict interpretation of the words of the law? That they actually deviate from what Congress intended? GASP! Youy mean we might have textual deviates sitting on a bench next to little schoolkids?

Lawyers are, of their nature, wordsmiths. They attempt to craft sentences which convey meaning which is neither more nor less than intended. They do this when they write statutes -- non-lawyer Congressmen do not really write statutes; their staff attorneys do -- and when they write wills and when they write leases and contracts and all manner of other stuff that comes off attorney word processors. When ambiguity is what is needed -- as when a statute ought not be too definite, so as to allow for localized interpretation of its application -- they write ambiguously. When great precision is needed -- as when a statute needs to prohibit only certain behaviours while permitting other similar but non-proscribed behaviours -- they write precisely.

The general rule of judicial interpretation of statutes and wills and contracts and other things written by lawyers is: "Let the plain meaning control." The need to resort to more invasive interpretation arises only when the drafter (of the statute, will, contract or whatever) has done an inadequate job of conveying precise meaning. In those cases, where else would you have a jurist go but to a dictionary, or better to several? And of course judges are going to accept the dictionary defintions which seem to make the most sense to them and reject those which make the least. What else would you have them do?

Terms like "textualism" and "strict construction" are not-very-helpful labels in that judges are human and tend to adopt whatever style of reasoning seems to them best suited to resolve the case at hand. While one may demonstrate a propensity toward textualism and strict constuctionism on the one hand or judicial activism on the other, many judges defy such simplistic categorisation.

Do you suppose that legal draftspersons tend to be prescriptivist or descriptivist in their orientation to language?

I always figured that an activist judge was one who came up with decisions that you don't agree with. As far as textualism goes, the opinion of Justice O'Connor on the use of a firearm to obtain drugs was a particularly egregious example. And, as I remember from the Nunberg piece, textualism was explicitly defined as not paying any attention to the intent of the law-makers. I remember reading a Louisiana anti-abortion statute that could, in the hands of a clever word-slinger, be interpreted to outlaw caesereans.