Posted by: captainfalcon | February 15, 2010

Vaguely amusing

From the article I pimped earlier comes a juicy piece of (I guess you could call it) judicial paternalism:

Texas’s legislated interpretive rules, codified in the state “Code Construction Act,” contain a key provision that arguably overrides a textualist approach…[T]he Act specifically allows courts—even in the face of a clear text—to consider, among other things, the statute’s purpose and legislative history. Even more explicitly, other statutory sections direct that courts must [as opposed to may – CF] “liberally constru[e]” all statutes “to achieve their purpose and to promote justice,” “diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.”… Inconsistent with this statutory scheme would be a rule that says courts can never consider legislative history absent ambiguity. And yet, that is precisely the Texas courts’ rule.


The Texas court justifies its rejection of the Code Construction Act on the ground that it is safeguarding the legislature’s lawmaking authority: “[t]he text of the statute is the law in the sense that it is the only thing actually adopted by the legislators, probably through compromise.” Thus, an “act must be carried into effect according to its language, or the courts would be assuming legislative authority.”

Pwned, Texas legislature.

Incidentally, I think the last bit goes too fast. Strikes me a court assumes “legislative authority” if it arrogates the power to enjoin its policy preferences. If it restricts itself (in good faith) to ruling on the basis of its reading of legislative intent, then it is attempting an act of judicial interpretation – interpreting the behavior of the legislature to try to divine its purpose – however misguided the attempt may be.

Still, I think the court’s paternalism is, for reasons at which the court gestures, reasonable enough. A legislature has the power to pass laws, which, if enacted, it is the duty of the judiciary to apply. If a court decides that its adopting some interpretive approach – e.g. using legislative history to divine a statute’s purpose –  will result in its systematically failing to apply laws (which is what systematically misapplying them amounts to) then it might very well decide that it would violate the separation of powers for it to adopt such an approach (and so render the legislature powerless to pass laws-that-are-given-effect.)


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