What the Iowa Supreme Court's Recent Public Indecency Decision Reveals About Statutory Interpretation
By MICHAEL C. DORF
|Wednesday, Sept. 10, 2008|
Last week, in State v. Isaac, the Iowa Supreme Court reversed a man's conviction for indecent exposure. The opinion reads as an almost textbook example of textualism--a method of statutory interpretation that focuses on a statute's text, rather than seeking to discern the collective intent of its drafters.
But is textualism the best approach to statutory interpretation? In this column, I'll discuss that question in general and in the specific context of the Iowa decision.
The Debate Over Statutory Interpretation: Justice Scalia's View Versus Justice Breyer's
What tools should judges use to interpret statutes? In recent decades, that age-old question has sparked new interest, as some scholars and judges--most prominently, U.S. Supreme Court Justice Antonin Scalia--have sought to delegitimize the long-accepted view that courts should try to give effect to the intent of the legislature.
A legislature, Justice Scalia and his fellow travelers say, is a collective body without any identifiable intent as such. Individual legislators may have discrete intentions in voting for or against any particular law, but the only authoritative expression of the intent of the legislature as a whole is the text of a statute.
In concrete terms, the most important consequence of textualism is to render nearly all legislative history irrelevant to the task of statutory interpretation. Committee reports and floor statements might or might not accurately reflect what some or even all legislators hoped to accomplish with a particular law, the textualists say. But either way, they contend, courts should not give effect to the views expressed therein, for to do so would short-circuit the legislative process.
Textualism has made its mark on Supreme Court jurisprudence. Empirical research shows that the Court's statutory decisions in recent years rely on legislative history less frequently than they did a generation ago.
However, the traditionalists have hardly surrendered to textualism. The Court as a whole, and individual Justices, continue to cite legislative history. As Justice (and then-Judge) Stephen Breyer explained in a 1991 article in the Southern California Law Review, "one of the best ways to find out the purpose of an action taken by a group is to ask some of the group's members about it."
As that quotation makes clear, and as Justice Breyer explains at length in the article and in his more recent book, Active Liberty, traditionalist judges do not naively believe that a legislature has an intent in the way that an individual person does. Nonetheless, legislation is purposive activity, and so, Breyer and others say, judges should strive to give effect to the purpose at which the law aims. In his book, Breyer borrows a familiar figure in the law, the reasonable person. A statute's purpose, in Justice Breyer's view, is simply the purpose that we can best attribute to a reasonable legislator who supported the law.
Justice Scalia and his fellow textualists are no more sympathethic to reasonable-person purposivism than they are to intentionalism. The reasonable legislator, after all, is a fiction, and thus, Scalia fears, judges will tend to ascribe to the reasonable legislator the purposes that the judges themselves favor.
Furthermore, textualists note, statutes often serve multiple, conflicting purposes. Environmental laws protect the environment but not to the point of stifling all economic activity; product safety laws aim to reduce but not eliminate risks; and so on. For a judge to say that the purpose of a law is simply environmental protection or product safety is to ignore the legislative purpose to go only so far towards those goals. The best evidence of the balance of purposes the legislature struck, textualists say, is the statute's text itself.
There stand the battle lines between textualism and purposivism, at least on the Supreme Court. Yet real cases sometimes expose the limits of legal theory--as illustrated by the recent Iowa indecency decision I mentioned at the top of this column.
The Creepy Case of State v. Isaac
The facts of the Iowa case are creepy: Late one June night in 2006, a police officer caught Ronnie James Isaac masturbating outside the bedroom windows of two women. Although Isaac used profanity to call out to each of the women, as the Iowa Supreme Court nicely put it, neither woman "saw Isaac or his penis." However, when confronted, Isaac turned toward the officer, thus exposing his genitalia. A chase ensued and Isaac was eventually apprehended, with "his flaccid penis outside his pants." His hands were oily, apparently from a bottle of baby oil in his back pocket.