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11/08/2012

Mike Ramsey on Scalia and the Absurdity Rule: Part 1
Mike Rappaport

Below, Mike Ramsey responded to my post that argued that the Constitution’s textual rule allowing the Vice President to be the presiding officer at his own impeachment trial is absurd and should not be enforced.  I have a couple of points to make in response to Mike’s arguments, so I will devote a couple of posts to the subject.

Mike writes:

I agree with the basic proposition [that Rappaport argues] that we should use interpretive principles of the time, to the extent they were widely understood and accepted, to find original meaning.

But he then writes:

I don’t think the absurdity principle means what he thinks it means.  In Reading Law, pp. 237-38, Scalia and Garner say:

[E]rror-correction for absurdity can be a slippery slope.  It can lead to judicial revision of public and private texts to make them (in the judges’ view) more reasonable.  To avoid this, the doctrine must be subject to two limiting conditions:

(1)   The absurdity must consist of a disposition that no reasonable person could intend …[and]

(2)   The absurdity must be reparable by changing or supplying a particular word or phrase whose inclusion or omission was obviously a technical or ministerial error … The doctrine does not include substantive errors arising from a drafter’s failure to appreciate the effect of certain provisions.

The problem here is that Mike is not using the right authority.  I like Scalia better than the next guy, but he is simply a Supreme Court justice and his views are not evidence of the views of the Framers’s generation.  The first condition is pretty close to the version of the absurdity rule that I offered in my post from Chief Justice Marshall.  But the second condition is not, as far as I am aware, from the Framing era sources. 

In fact, the quote that I offered from Chief Justice Marshall was one of the more textualist oriented versions of the absurdity rule from the Framing era.  Other versions seem to be even more intentionalist.  It is not surprising that Scalia does not like this rule, but it is the Framers who matter, not Scalia.

As Mike mentions in his post, and as Mike and I have discussed, Scalia does not do a good job of explaining where these canons come from.  Scalia may want to cabin the absurdity rule in the way that he does, but that does not mean that is the version of the rule that is applicable to the Constitution.

Next time, I want to address more precisely what I think the effect of the absurdity rule on this issue is.

(Cross Posted at the Liberty Law Blog)