If it was assumed that Congress did not intend to waive s.i., it seems odd to me that in selecting between a more literal reading of the statute or congressional intent, it should go in favor of textualism because of the beauty of a lay person understanding it superficially. Are lay private citizens considering filing suit under the Credit Act after walking themselves through the statute to determine sovereign immunity? Wouldn’t it be clear enough to this (rather sophisticated) potential lay litigant to google and find out that a court has held that the government can or can’t be sued under this law? Doesn’t the judiciary want to “get it right” even if it means statutes are harder to understand for a lay person? For better or worse we have so many laws that a lay person can read as straightforward but have no idea as to its real world meaning. If a citizen is charged with, say, possession of a weapon by a gang member - it’s simply not possible for a lay citizen to read the words of the statute and know what it means for their liberty. It requires extra textual legal work to determine the meaning of this law - determining their criminal history eligibility or what it will take for the prosecution to prove constructive possession or gang membership. Throw Bruen into the mix, and all the judge made law in interpreting the constitution, and the meaning of a number superficially easy to read laws are unknowable to their full extent by a lay person. Laws should be written by legislators as simply as possible, but in interpreting them, I don’t see textualism as protecting the lay person from lawyers complicating things with a legislative intent reading. An originalist wouldn’t be dissuaded from applying early American legal opinions on the grounds that that the result could confuse a lay reader of the words of the current law. In the gun possession example, the extra textual work ensures that the law is applied as intended and constitutionally.
I guess I prefer the reading of the ‘no vehicles in the park’ law that allows the ambulance in, even if this makes it a little harder to understand for the private citizen.
More vegetables are welcome! I want you to write about...well, whatever you want: you're providing free content here. But it's really great when you shed light on cases and issues that aren't the ones that everyone else is expounding upon.
Simplicity is one value. Democratic supremacy is another. We should require our legislators to impose binding interpretive principles that govern statutes and that judges would then have to follow. The idea that the Supreme Court can choose which construction rule to apply (and change it over time depending on which 5 out of 9 prefers one rule) effaces the concept of "legislation" and makes it judicial legislating.
We should ABSOLUTELY disfavor sovereign immunity even if it is venerable; it is an affront to the notion of government arising from and subservient to the people of the nation, which is at the core of the American theory of government. How can the people be the source of power if the government is not answerable to its citizens?
fascinating look into the minds of judicial interpreters. Does Kirtz have other theories besides the FCRA on which to base a claim of damages?
Adam,
Great essay.
If it was assumed that Congress did not intend to waive s.i., it seems odd to me that in selecting between a more literal reading of the statute or congressional intent, it should go in favor of textualism because of the beauty of a lay person understanding it superficially. Are lay private citizens considering filing suit under the Credit Act after walking themselves through the statute to determine sovereign immunity? Wouldn’t it be clear enough to this (rather sophisticated) potential lay litigant to google and find out that a court has held that the government can or can’t be sued under this law? Doesn’t the judiciary want to “get it right” even if it means statutes are harder to understand for a lay person? For better or worse we have so many laws that a lay person can read as straightforward but have no idea as to its real world meaning. If a citizen is charged with, say, possession of a weapon by a gang member - it’s simply not possible for a lay citizen to read the words of the statute and know what it means for their liberty. It requires extra textual legal work to determine the meaning of this law - determining their criminal history eligibility or what it will take for the prosecution to prove constructive possession or gang membership. Throw Bruen into the mix, and all the judge made law in interpreting the constitution, and the meaning of a number superficially easy to read laws are unknowable to their full extent by a lay person. Laws should be written by legislators as simply as possible, but in interpreting them, I don’t see textualism as protecting the lay person from lawyers complicating things with a legislative intent reading. An originalist wouldn’t be dissuaded from applying early American legal opinions on the grounds that that the result could confuse a lay reader of the words of the current law. In the gun possession example, the extra textual work ensures that the law is applied as intended and constitutionally.
I guess I prefer the reading of the ‘no vehicles in the park’ law that allows the ambulance in, even if this makes it a little harder to understand for the private citizen.
Again, thanks for your writing Adam.
More vegetables are welcome! I want you to write about...well, whatever you want: you're providing free content here. But it's really great when you shed light on cases and issues that aren't the ones that everyone else is expounding upon.
Simplicity is one value. Democratic supremacy is another. We should require our legislators to impose binding interpretive principles that govern statutes and that judges would then have to follow. The idea that the Supreme Court can choose which construction rule to apply (and change it over time depending on which 5 out of 9 prefers one rule) effaces the concept of "legislation" and makes it judicial legislating.
We should ABSOLUTELY disfavor sovereign immunity even if it is venerable; it is an affront to the notion of government arising from and subservient to the people of the nation, which is at the core of the American theory of government. How can the people be the source of power if the government is not answerable to its citizens?
Yeah, I read Adam's three basic reasons for defending sovereign immunity and thought none of them balanced out the doctrine's drawbacks.
Fascinating. Thank you.