I was a bit hard on a Noah Feldman column last week, so here's one I like (though I don't agree with it): What Would Scalia Do With 2,447 Bottles of Wine? (commenting on the case Pennsylvania v. 2,447 Bottles of Wine).
Apparently Pennsylvania confiscated some wine that had been illegally brought into the state and the question was what to do with it. As Feldman recounts:
A provision of Pennsylvania law dating back to the 1930s says that alcohol confiscated by the state can be destroyed or transferred “to a hospital for its use.”
Hoping to take advantage of this provision, the Chester County Hospital applied to the court to ask for the confiscated wine. The hospital intended to use the wine “to fund raise for charitable purposes.”
But Chester County Judge Edward Griffith refused to grant the request. In a nine-page order, he reasoned that in its original context, the law must’ve contemplated the use of confiscated liquor for medicinal purposes. Now, Griffith said, the law would not permit transferring the liquor to the hospital for sale. “Since the Liquor Code makes no provision for condemned wine to be sold for any purpose,” he reasoned, “the wine may not be delivered to a hospital for sale.”
Feldman says, and I agree, that a textualist would not reach this result. As he describes it, Pennsylvania law just says the wine can be given to a hospital, period. Presumably the drafters were thinking that the hospital would use it for medicinal purposes, but that intent isn't in the statute. Another way to look at it is that intent was that the hospital could use it for any lawful purpose, which in those days was only medicinal, but now includes other things such as sale. In any event, the lawmakers could have, but did not, impose a statutory limit on use, so the court has no business creating one.
More significantly, Feldman also says that a purposivist should also find for the hospital. This seems counterintuitive. The judge in the case thought he could discern the statute's purpose (to allow medicinal use), and applied it to limit the text. Why isn't that the right purposivist answer? Feldman explains:
What should a court do when faced with a statutory purpose that is archaic, obsolete and no longer sensible? The law is still on the books, and it can’t be completely ignored. But it can be interpreted. And the interpreting court should follow Aristotle’s immortal advice: Imagine that those who drafted the law were reasonable people, and act as they would’ve wanted in the light of the new realities that now obtain.
Assuming the framers of the original law wanted confiscated liquor to help hospitals, what would they now want? Most likely, they would still want confiscated liquor to help hospitals. At one time, perhaps, that assistance came through medicinal use. Now it would come in other ways. Regardless, the statute’s true purpose is to take advantage of alcohol confiscation for the benefit of public health.
Assuming Feldman is right on purposive methodology, what he shows is that purposivism isn't really interpretation — it's judges coming up with the result they think reasonable. His conclusion as to what the legislature would want now is pure speculation. First, it's an absurd counterfactual: what would a group of people who were in the state legislature in the 1930s, about whom we and Professor Feldman know nothing, what to do with confiscated wine now, 85 years later, knowing that hospitals have no use for it as medicine? Second, his solution isn't the only available answer. Perhaps those 1930s legislators, if informed that hospitals don't use wine for medicinal purposes anymore, would want to get rid of the wine altogether. Or perhaps, once they understood that, post-prohibition, confiscated wine would have a market value, they would want the state to auction it off and use the proceeds for public health, or for something else. In any event, once the medicinal link between wine and hospitals is broken, why should a hospital, as opposed to another institution, benefit?
It's pretty clear that Professor Feldman doesn't really care what the 1930s legislators would think. What matters is what he thinks, as a reasonable interpreter. Letting the hospital sell the wine seems reasonable, to him, so that's the answer. And thus purposivism becomes the rule of judges.
The key move (and to my mind a somewhat deceptive one) is the shift from asking what the legislators thought they were doing when they passed the statute to asking what the legislators would want if they were passing the statute today. The first question, which is what Judge Griffith asked, is a more-or-less manageable one, and can be justified as giving effect to what the legislators meant to enact. It's not my preferred approach for a variety of reasons (including that it can be manipulated into Feldman's approach), but it is eloquently defended by Judge Robert Katzmann in his new book. The second question, which is what Professor Feldman asks, really asks what the judge thinks is reasonable. Asking it depends on a completely different theory of judging — one that can (perhaps) be justified, but not one that can be justified on the ground of giving effect to the original legislators' intent.
Posted at 6:45 AM