Notes From Babel

Sandefur on Kerr’s inconsistent positivism

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Tim Sandefur makes a very important point in response to what Orin Kerr at Volokh probably intended simply to be an amusing story:

Prof. Kerr points to an amusing case of poorly drafted legislation in Virginia, where, if read literally, the law prohibits “stopping any school bus which is stopped.” It’s pretty obvious that the statute’s confusingly worded—what the legislature meant was that cars are required to stop when they encounter a stopped school bus, no matter the direction from which the car approaches. That’s fine. The problem is, for Kerr to make this argument, he has to ignore the Holmesian positivism that forms his interpretive background, and end up contradicting his later comments about the Individual Mandate in Obamacare.

Kerr notes that “it’s clear what the legislature is trying to prohibit.” True, but only if you approach the statute with certain normative values, that you derive from some source outside the statute; that is, only if you come to your interpretive task with the assumption that there are certain standards of traffic safety that it’s sensible for the legislature to enforce—and certain standards of interpretation which it is appropriate to use when reading such a law. If, on the other hand, you rely solely on the language itself, as positivism would require, then it is not clear that the statute “should” be interpreted in anything other than a literal manner. To say that “statutes should be construed to avoid absurdity and to avoid unconstitutionality” is to assume a normative framework—just what positivists are far too clever and sophisticated to do—and thus to beg the question.

(Boldface mine.)  This obviously becomes much more important when we have to interpret the language in our Constitution concerning individual liberties and the limits of government power. Just as “we ought to start with assumptions about how buses and automobiles, and the statutes regulating them, should operate,” we likewise “should read the Constitution with assumptions, rooted in the Constitution’s purpose, history, and relationship to natural, human rights.”

This is a hugely important foundational matter in the way one approaches constitutional law. Though I disagree a lot with libertarians, Sandefur’s brand of natural law libertarianism is extremely compelling, which is why I, a natural law conservative, have high regard for Sandefur.*

* Even though to this day (well, yesterday), Tim seethes at my decision while editor-in-chief of the Chapman Law Review to publish a law review article with which he disagrees.  I was a little surprised to learn he’s still stewing over it given he’s never replied to my responses, e.g., here and here.

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Written by Tim Kowal

December 4, 2010 at 8:05 pm

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