A Commonplace Book

Judges have the job of trying to work out what the words written down in a statute actually mean. We have six traditional ways of approaching this job. First, we read the words. Second, we look to the tradition. For instance, the phrase "habeas corpus" has a big legal tradition behind it. Third, we look to the history of the case. Fourth, we look to precedent - what has been said about this in previous cases? Fifth, we look to purposes - somebody wrote this statute, what did they have in mind and what were they trying to accomplish with these words? And sixth, we look to consequences. That is, if we interpret the statute this way are we furthering the statute's purpose or are we hindering it. Everybody uses those six tools: Text, tradition, history, precedent, purpose and consequence.

Some judges tend to emphasise purposes and consequences. That's what I do. I often cannot get the answer from the first four things, so I look to purpose - what did the authors of the bill mean? What were they trying to accomplish? Other judges feel that that's too subjective. They try to find the answer in history, text, language and tradition - the first four. That explains differences among the judges. It's a question of emphasis. I fear that just looking at text, history, tradition and precedent won't answer the question. If that's all you look to, too often you will produce a law that is too rigid to adapt to human circumstances, which are ever-changing. That's why I look to purposes, but I certainly agree that the first four are relevant.

...Values don't change, but circumstances do. The Internet is something that George Washington didn't envision. George Washington can't tell us how the First Amendment applies to the Internet. But history can tell us what the framers were trying to achieve when they wrote the First Amendment. Some people think they can answer specific questions today through history. I think you can't get that much out of it and you must apply, as best you can, unchanging values like free expression to the ever-changing circumstances of modern life.