“Kerr’s Inconsistent Positivism”: A Response to Sandefur

Over at Freespace, former VC guest-blogger Tim Sandefur argues that I am guilty of “inconsistent positivism” in two series of posts I have written. In the first set of posts, I argued that existing commerce clause doctrine can be used to support the constitutionality of the individual mandate. In the second series of posts, I argued that the Virginia traffic law on passing a stopped school bus should be read as prohibiting passing a stopped school bus instead of failing to stop a stopped school bus.

Why are the two posts inconsistent? When I interpreted the Virginia traffic law, I invoked the doctrine that statutes should be read to avoid absurdity. According to Sandefur, that is a normative preference I have imposed on the Virginia traffic law. But I am being inconsistent by not imposing my normative preference on the individual mandate, too: When it comes to the individual mandate, I am not imposing any normative preferences at all. Indeed, when it comes to the individual mandate, I am suggesting that current caselaw could be read to include the absurd result that there are few limits on Congress’s power. Thus I am being inconsistent in when I decide to impose my normative preferences in answering legal questions: In one case I avoid absurd results, in the other, I don’t.

I appreciate the close reading of my posts. At the same time, I don’t think I’m being inconsistent. Here’s why:

1) The notion that a statute should be read to avoid absurdity is not my personal normative preference. It’s not like I have deeply felt commitments to rationality that I am personally imposing on the statute. Rather, it is a canon of interpretation adopted by the Supreme Court of Virginia. See, e.g., Syed v. ZH Techs., Inc., 280 Va. 58, 69, 694 S.E.2d 625, 631 (2010) (“Statutory interpretation is a question of law which we review de novo, and we determine the legislative intent from the words used in the statute, applying the plain meaning of the words unless they are ambiguous or would lead to an absurd result.”). If the Supreme Court of Virginia instead adopted the canon that statutes must be read to encourage absurdity, then I would change my interpretation of the statute accordingly.

2) Statutory interpretation is a different legal exercise than determining if a statute is consistent or inconsistent with a body of constitutional precedents. Statutory interpretation without any cases to interpret the key words is an exercise of reading text and giving it meaning based on canons of interpretation. In contrast, determining if a statute is consistent or inconsistent with a body of precedents is a comparative exercise: It requires comparing a set body of law with a statute and seeing how they fit. Those are two different tasks, and should be approached in different ways. If the body of constitutional law is itself absurd, by whatever standard, then answers as to what statutes are constitutional according to that law should be absurd, too. In that case, results that seem absurd don’t suggest that the cases aren’t fairly read that way: They just suggest that the cases are themselves absurd.

Finally, I realize that some readers abhor the idea of reading cases and analyzing what the cases say without imposing one’s personal preferences on them to generate the desired result. To many readers, when I say what the law is, I should really mix my own preferences into the mix to make sure the result is one I like. I think it’s fine if people want that. But my brain is small, and it works better when we keep normative and the descriptive questions separate. That doesn’t mean I don’t have my own normative theory of constitutional interpretation. I do: It’s called the Edsel X62 HutHut 1 Theory. It puts the other theories of interpretation to shame, as it generates totally awesome results every time. But I generally don’t blog about the Edsel X62 HutHut 1 because I worry its use could fall into the wrong hands.