by Matt Barr

Textualize this!

Textualism is the legal theory that we should be concerned with the law says, interpret what the law says and be governed by what the law says, regardless of the intent of the people who drafted it (the best evidence of what they meant being what they wrote, anyway), regardless of why legislators may have voted for it (is there a relaibale way to ever know that? Do we even know if they read it before voting on it?), and certainly regardless of what we think it ought to say or mean.

Via Prof. Althouse's site we find this story which is, for a textualist, like going back to law school. What if a law is clearly "miswritten"?

[A] federal appeals court has handed the [defense] lawyers a stunning victory, but not for the reasons they cited. Instead, the court ruled that the sentence was invalid because the document signed into law by President Bill Clinton contained a phrase that was illogical.

The law said that defendants like Mr. Pabon, who was convicted two years ago of advertising to receive or distribute child pornography over the Internet, should be fined or receive a mandatory minimum sentence of 10 years "and both."

The appeals court said this language "makes no sense."...

What followed was some sleuthing: a representative of the Justice Department went to the National Archives to review the actual parchment copy of the law with Mr. Clinton's signature on it, the court said. There was the confusing language - a fine or a sentence "and both."

"That bill does in fact contain the 'and both' language," Judge José A. Cabranes wrote for a unanimous three-judge panel of the appeals court. "Our task here is not to doubt the accuracy or validity of that language, but merely to determine what Congress intended by it."

Mr. Clinton signed the law in 1996. In trying to determine what Congress actually meant, the court noted that the language of the law in the joint House-Senate conference committee was different: It called for a fine or a 10-year mandatory minimum sentence "or both." That suggested that Congress did not intend a mandatory term in prison, the appeals court said. In its ruling, the appeals court said the mistake was a "scrivener's error."

Now, your good textualists are all for finding and fixing "scrivener's errors." But, you rightly object, doesn't that mean you have to investigate the "legislative history" and "legislative intent," the latter of which you consider unreliable at best and unknowable at worst?

I suppose. I've set this post up as a challenge to my textualist beliefs, but honestly, don't they have people checking this stuff before bills are printed, and doesn't anyone in the President's office read them before they're signed?

Anyway, in this case I don't think it's reasonable to conclude that the "and" was anything but an error in transcription; how many other laws on the books call for a fine or jail time "or both"? Why would you fine someone for a crime not involving theft (restitution) and sentence them to ten years in jail?

But because there are two sides to every story, the government argued that the law meant what it said:

The office of United States Attorney David N. Kelley had told the appeals court that it believed Congress had always intended to impose a mandatory 10-year term on first offenders in such cases. Mr. Kelley's office conceded that the law could certainly have been more artfully drafted, but said it should be interpreted to require a 10-year minimum.

"It is inconceivable," prosecutors wrote, "that Congress meant to permit judges to impose either a fine or a 10-year term, and nothing in between, on first offenders."

Possibly. This turns out to be an easier case because the pornographer at issue will be jailed on another contemporaneous conviction, so we're not talking about whether we should either fine a child pronographer or jail him; given only those choices, most of us would want to jail him. He'll do his time.

But this case certainly is a challenge to textualists. What, hypothetically (even esoterically) speaking, is Mr. Pabon-Cruz's remedy if we go by the words of the statute, but we believe the resulting sentence is unjust? Actually, the pardon power of the Presidency exists for just such an emergency. If the President thinks Mr. Pabon-Cruz should only serve a year and a half, he can pardon him after 18 months.

But tracking down evidence that a law was simply mistranscribed is fine. Textualism doesn't go that far, I don't think. Interesting case.

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