Category: Rhetoric

Commentators today have taken interest in a pointed footnote of Justice Jackson’s dissent in Stanley v. City of Sanford, Florida (p. 23, note 12). I’ve included below a screenshot of the note:

I find Jackson’s argument here fascinating (and compelling) in light of my recent writing on legal equity, particularly in the concept’s Aristotelian tradition. Above, Jackson criticizes the majority’s embrace of “pure textualism”—that is, the majority’s “refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve.” Such “pure textualism,” in effect, closes off a major method of grappling with the “ambiguous text” of a statute, empowering the Court to “disguise” their own interpretive practices in order to “secure the majority’s desired outcome.” In other words, tossing out any investigation into legislative intent leaves judges with little else to work with aside from their own presuppositions and personal aims, changing linguistic ambiguity from a question for research into a moment to exploit.

What caught my eye here is how a “refusal to try to understand … what Congress sought to achieve” is a rejection of Aristotle’s approach to legal interpretation in the Nicomachean Ethics. In that text, Aristotle foresees how general laws will need to be applied to unforeseen, particular cases. We will be left, he argues, to “rectify the deficiency [of the law] by reference to what the lawgiver himself would have said if he had been there and, if he had known about the case, would have laid down in law.” (This principle of “rectifying” the law by excavating its intent and bending it around individual cases is what Aristotle calls epieikeia, later translated as aequitas or “equity.”)

As I lay out in the third chapter of my book, Americans of the 1780s similarly understood how a law’s “consequences were not foreseen by the Legislature” and that, therefore, judges would need to reinterpret laws according to legislative intent (p. 81). In fact, it was understood even in this post-Revolutionary period that attending just to the strict text of the law “resulted in a confusion that wicked men turned to their private advantage” (p. 80). The American Founders and their contemporaries, then, would seem to agree with Justice Jackson. Groveling before the “pure text” of the law and refusing to consider “Congress’s aims” runs against both Greco-Roman attitudes toward statutory ambiguity and an early American embrace of legal equity as a necessary check on judicial corruption.