Statutory Interpretation, the “Nietzsche Rule”, and Stevens and Scalia in Zuni

From Chapter 8, (‘Doctrines of Statutory Interpretation’), Section 1, A. ‘Textual Canons’, 2 ‘Grammar Canons’, (f) ‘The Golden Rule (Against Absurdity) – and the Nietzsche Rule.  of William N. Eskridge, Jr., Philip Fricket, and Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy, Thomson West, American Casebook Series, Saint Paul, MN, 1988:

English-speaking jurisdictions have a few catch-all rules providing a mental check for the technical process of word-parsing and grammar-crunching. The golden rule is that interpreters should “adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that * * * leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further” Becke v. Smith 150 Eng. Rep. 724, 726 (U.K. Exch. 1836)….

The golden rule is…an absurd results exception to the plain meaning rule….

[C]courts should be willing to revise scrivener’s errors – obvious mistakes in the transcriptions of statutes into the law books….

The golden rule and its corollaries are now subject to academic debate. Although Justice Scalia recognized an absurd results exception to the plain meaning rule in Bock Laundry (concurring opinion) scholars of various persuasions maintain that an absurd results exception to plain meaning is inconsistent with the premises of the textualism. In Zuni Pub. Sch. Dist v. Department of Educ. 127 S.Ct. 1534, 1549-50 (2007), Justice Stevens’ concurring opinion rests the absurd result exception upon notions of probable legislative intent: if a plain meaning interpretation is truly absurd, that is prima facie reason to think Congress did not it (absent evidence to the contrary, of course). Justice Scalia roundly denounced that approach, in absolute language suggesting that he now agrees with his critics that there should be no absurd results exception to the plain meaning rule. Id. at 1555-59 (Scalia, J., dissenting).

Friedrich Nietzsche admonished in Mixed Opinions and Maxims No. 137  (1879): “The worst readers are those who proceed like plundering soldiers: they pick up a few things they can use, soil and confuse the rest, and blaspheme the whole.” All the Justices would agree with this sentiment; indeed, both Stevens and Scalia invoke it in their Zuni debate. We read Nietzsche’s lesson for the statutory interpreter to include the following: Be humble. Consider how other people use language. Be helpful to the project rather than hypertechnical.

(The Nietzsche excerpt is from (as cited): Friedrich Nietzsche, On the Genealogy of Morals (and Other Works), 175 (Walter Kauffman trans. ed. 1967). The authors also note, “David Krentel, Georgetown Law Center, Class of 1995, brought this maxim to our attention.”)

Brief commentary:

1. The merely obvious: not the first, and not the last, co-occurrence of Scalia and Nietzsche in a legal text or setting.

2. The invocation of “project” in the last sentence is intriguing. Indeed, the authors’ reading of Nietzsche’s “lesson” is interesting all around for its particular deployment of “humble,” “helpful,” and “hypertechnical.” The contrasts drawn and established are stark, all the more distinctive for the irony that Nietzsche  provokes for making us associate the advocacy of humility with him.

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