When interpreting statutes, does the Constitution require federal judges to act as agents of the incarnation of Congress that enacted the legislation or the present day Congress? That was the question before Judge Guido Calabresi of the U.S. Court of Appeals for the 2nd Circuit and Judge Frank Easterbrook of the U.S. Court of Appeals for the 7th Circuit at the Federalist Society’s annual debate luncheon this afternoon.
Easterbrook argued in favor of the notion that judges should interpret statutes as the enacting Congress intended, while Calabresi, who noted that he agreed with the enacting Congress approach, argued that statutory interpretation also needed to factor in evolving language and the context that the legislation was created under.
Easterbrook said that judges should remain faithful to the Congress that passed a statute because trying to predict how the current Congress would want the law to be applied would create a host of problems. Easterbrook, who said judges often over-think the intentions of Congress, quipped, “I’m in favor of judges not thinking. The more thinking they do about statutes, the more they get wrong.”
Calabresi argued for a three-step approach to interpreting statutes. He said judges should first focus on the precise meaning of a statute's language before turning to the historic context that gave rise to the legislation. He said that a judge's last resort should be a statue's legislative history, which he noted can be problematic, but Calabresi said it can shed light on questions of how a law should be applied. “Legislative history, as we of course know, can be fraudulent. That’s one of the greatest things Nino Scalia has taught us. But it’s not always useless.”
Calabresi added that even the language and historical context of a statute can make interpretation difficult because words change over time, and it is often impossible to determine what the actual historic context would have been. He cited as an example speeches made by Abraham Lincoln, in which Lincoln argued in favor of segregation. “People say that that was just the context of the time and had he made those speeches today, he would be arguing in favor of integration. But that’s like putting Lincoln in a Speedo or Washington in cutoff jean shorts. Today’s standards in that historical context just don't make sense,” Calabresi said.
The two judges spent much of the debate agreeing with each other, but they did have different opinions on what to do in cases where it is impossible to determine whether Congress considered how a statute should be applied in a novel situation. Easterbrook said in those instances, the statute should be set aside in favor of a different law that might be more easily applied. “If you read the statute and it doesn’t have an intelligible result, you simply say the statute is exhausted and you turn to a fallback route,” he said.
Calabresi, on the other hand, argued that judges should apply the statute and if it leads to bad results it will prompt Congress to readdress it with updated legislation. “If we do it badly despite our best intelligent efforts, the legislature will have to react,” he said.