The writers and readers of statutes have separate roles
By Judge Layne Smith
Punctuation matters. Compare “let’s eat Nancy” with “let’s eat, Nancy.” Following that first directive may result in criminal charges.
Q. Judge Smith, you say you are a textualist and that you interpret statutes based on their plain language. Why don’t you also consider the legislature’s policy intentions when reading a statute? — Will
A. Your question contains the answer. The constitutional role of the legislature is to write statutes and the constitutional role of the judiciary is to read statutes as written. Judges shouldn’t deviate from the plain meaning of the words that the legislature chose to employ. Here’s why.
It’s the legislature’s job to clearly articulate a statute so that regular people can read and understand it. A statute should put the people on notice of what the law requires, how to comply, and what happens if they don’t.
Suppose people think that a statute is unsatisfactory as written. They might think it too harsh or not comprehensive enough. Only the legislature can modify or repeal the statute. Judges cannot change the law by modifying or ignoring the express language of a statute to negate or expand its reach. Doing otherwise would violate the separation of powers and usurp the legislature’s rightful authority.
The legislature is bicameral by design. It is comprised of two independent bodies, a 120-member house of representatives and a 40-member senate. Often, the House of Representatives and the senate have different objectives in mind, as do the individual representatives and senators regarding a statute. When that happens, there is no single legislative intent. There may be a multiplicity of legislative intents, some of which are inconsistent.
Enacting legislation is a collaborative give-and-take process that typically involves lobbyists, political trade offs, and deal making. Statutory law does not include prior drafts or discarded ideas that didn’t make the final cut. Before proposed legislation becomes the law, identical bills must be passed by a majority vote in both chambers. Thus, a duly enacted statute is the end-product of bicameralism and practically everything that preceded it is miscellaneous noise.
Determining legislative intent isn’t easy and in a partisan society legislative intent often depends on the eye of the beholder. When the genesis of a statute was a mixed bag of motives, some at cross-purposes, judges don’t possess special insight that enables them to divine “legislative intent.” Instead, they must read statutes as written. Otherwise the rule of law will suffer.
Fortunately, judges’ decisions can be appealed and appellate decisions about reading statutes provide guidance and promote uniformity.
The Honorable J. Layne Smith is a Circuit Judge and author of the international bestselling book “Civics, Law, and Justice—How We Became U.S.” Email your questions to askjudgesmith@gmail.com.
