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Norms for Effectuating Specific Policies

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to disinherit a spouse, and so forth. Whether or not these doctrines reflect wise policies, there is nothing problematic about them insofar as
interpretive methodology is concerned. They merely ask the interpreter what would this instruction in this document likely mean if it had been
authored by someone with characteristics that the actual author may or may not have possessed. Or, more precisely, these doctrines are not
about interpretation at all; they authorize the judge or other “interpreter” to author the document in question. The interpreter acting as author,
however, is not free to apply his or her best judgment about what the content of the document should be but instead must apply the algorithms
called for by the governing doctrine. The actual authors of contracts, wills, and the like can anticipate these “interpretive” algorithms and have
their documents interpreted in accord with their intended meanings if they are skillful.
Similarly unproblematic are substantive constraints on statutory interpretation that derive from the higher law of the Constitution. The
doctrine of lenity, for example, supposedly effects the policies of the due process and ex post facto law clauses that seek to protect actors against
being charged with crimes based on nonobvious to ordinary people intended meanings of criminal statutes. The doctrine directs the courts
to give criminal statutes the most restricted meaning where more than one meaning is possible. In other words, the courts are to imagine that
criminal statutes are drafted by hypothetical legislators who seek to limit the scope of criminal liability perhaps more than did the actual legislators
who enacted those statutes. This again is just intentionalist interpretation with hypothetical authors inserted in place of actual ones.
As we said, none of these doctrines that constrain the interpretation of canonical legal texts on behalf of substantive policies require departing
from the ordinary human endeavor seeking authors’ intended meanings. No special craft skill is required by them. Any of us can imagine that a
document was drafted by someone other than its actual author and ask what it would have meant in such a case. It takes no special legal training
to answer the question what would “I’ll make him an offer he can’t refuse” mean if, instead of Don Corleone making the statement, it were
made by our sweet, good-natured real estate broker.
There is an interesting problem here, however. If courts are directed to imagine hypothetical authors who differ from the actual authors along
certain dimensions, there have to be additional constraints added to keep from completely undermining the ability of actual authors, whether
private or legislative, to have their intended meanings heeded. This is because any symbols can be employed to communicate any intended
meaning. Thus, as an example, if the doctrine of lenity instructs courts to “interpret” criminal statutes narrowly, what stops them from interpreting
those statutes ridiculously narrowly? It would not be the actual intended meaning of the actual author, for we have already dispensed with that in
invoking the doctrine of lenity. Nor would it be the actual meaning of the words; for, as we emphasized in the preceding chapter, actual words –
certain shapes and sounds – do not carry a meaning if there is no author intending a meaning by those words. So the doctrine of lenity and the var-
ious other similar doctrines that, in service of substantive policies, con- stitutional and nonconstitutional, direct judges to disregard the actual
intended meanings, need to supplement the characteristics of the target hypothetical authors beyond those we have mentioned. So if the hypo-
thetical legislators of criminal statutes are supposed to be motivated to limit the scope of criminal liability, judges need to know by how much.
Or if the hypothetical drafter of a testamentary document is supposed to be disinclined to disinherit the spouse, judges need to know by how
much. And so on. Otherwise, criminal liability would disappear, and so would the ability to disinherit spouses.
The most obvious supplement to add here is that the hypothetical legislature or will drafter uses, say, standard English – perhaps definitions
listed first in a designated dictionary – and standard grammar. Doing so will in most cases put limits on the hypothetical authors that will prevent
courts from undermining all criminal liability in the name of lenity and undermining the ability of drafters of private documents such as wills
and contracts to accomplish their ends.
One doctrine that directs courts to disregard actual intended mean- ings for substantive policy reasons but that raises a worry of a different
kind is the doctrine of interpreting statutes to avoid having to resolve constitutional questions – the so-called Ashwander doctrine in United
States constitutional law.
The problem with Ashwander is not that it
See Ashwander v. T.V.A., 297 U.S. 288 1936.
directs courts to look to what a hypothetical legislature would have meant by a statute rather than to what the actual legislature meant. The
doctrine of lenity does that as well. The problem is that, at least arguably, although the doctrine of lenity is a doctrine commanded by the Consti-
tution, the authority of which is superior to that of the legislature, the Ashwander doctrine does not implement any higher-order legal norm.
Interpreting to avoid constitutional issues is not itself a constitutional command. So when a court following Ashwander disregards the actual
intended meaning of a statute and “interprets” as if the statute were authored by a hypothetical legislature intending the statute steer clear of
any constitutional limits, the court is exercising only the power it has as a court to interpret statutes and not the power it possesses to strike down
unconstitutional statutes. And in following Ashwander, courts make leg- islatures go through hoops not found in the Constitution in order to have
their intended meanings implemented. It might be concluded that use of the Ashwander presumption represents a violation of the constitutional
separation of powers.
The more interesting constraints on authorities’ determinations are pro- cedural constraints. Procedural constraints are norms that dictate the
form that rule makers’ determinations must take and that handle cases where the rule makers have apparently but not really determined what
ought to be done. The norms that dictate form reflect the rule-of-law value of the accessibility of law. The norms that handle cases of failed law
reflect both the rule-of-law value of accessibility and the more substantive value of consistent policy.

1. Norms of Form

We are quite familiar with certain formal constraints on rule makers’ determinations that must be satisfied before those determinations are
deemed to have legal effect. For example, we have norms covering what
See Larry Alexander and Saikrishna Prakash, Mother, May I? Imposing Mandatory Prospective Rules of Statutory Interpretation, 20 Const. Comment. 97, 104 2003.
counts as a “vote” by a legislator to enact a rule, which “vote” not only signifies that the voting rule maker’s intention will be counted but also
marks the moment in time at which the relevant intention must exist. One who votes aye when the roll is called is counted as in favor of the
proposed bill for purposes of determining whether the bill has become law, even if she is subjectively opposed to the bill, and even if, moreover,
she believes aye means “opposed.”
Notice that in the case of the rule maker who votes aye thinking it means no, if that person provides the necessary vote for passage, the law
is deemed to have been passed even though a majority of the rule makers intended that it not pass. In such a case, the law is not what the majority
of the rule makers determined ought to be done. When the law comes to be applied, what does it “mean”?
We could have a norm that provided that in the case just described, the law means what the rule makers voting in favor intended to mean by
it, except that for the person mistakenly voting aye, the law means merely what she thought it would mean if passed. She herself did not intend that
meaning because she did not intend for the law to exist as law.
We need some such procedural norm because we have a gap to bridge: the gap between what the majority of rule makers determined ought
to be done – nothing – and what our norm regarding voting provides is the case, namely, that a law was passed. If we say that because of the
mistaken and pivotal aye vote a law was passed but it has no applications, we undermine the norm regarding what counts as aye and no votes. And
without that norm, there will be continued uncertainty regarding what laws exist, an uncertainty that undermines the rule-of-law value of the
knowability or accessibility of the law.
It is a short step from familiar procedural norms about voting to some similar but perhaps less obvious procedural norms. Consider the
following procedural norms that might constrain the rule makers’ deter- minations. 1 All texts shall be interpreted as if they were written in
the standard English of the date of enactment, with respect both to the meanings of the words used and to grammar and punctuation.
2 All
That the monkeys’ marks resemble marks made by writers in English makes no difference. Is the flagpole outside my office the letter I? And suppose there were a language Shmenglish
that resembled English in every way, except that the nouns and verbs were switched around,

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