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Noah Feldman: The Constitutionality of Love Triangles

June 2 (Bloomberg View) — The case is out of Agatha Christie: Twenty-four separate times, Carol Anne Bond spread an arsenic-based compound and potassium dichromate on the car door, mailbox and doorknob of the woman who was both her closest friend and, it turned out, her husband’s lover. All she managed was a single burned thumb; the case would never have reached the U.S. Supreme Court had not overreaching prosecutors charged Bond with a chemical weapons violation.

Today, the court ducked the potential international implications by holding that it wasn’t “utterly clear” that the chemical weapons law covered Bond’s conduct. Unfortunately, to reach that common-sense conclusion, the court felt it had to invent a new quasi-constitutional doctrine with potentially far-reaching implications. The whole sordid tale can tell us something important about how the court does its business today when interpreting statutes.

Start with the obvious: It’s clearly absurd to apply a law passed by Congress in fulfillment of U.S. obligations under the international chemical weapons treaty to an unfortunate love triangle. Yet the law as written covered the act, because Bond used a toxic chemical to injure someone.

In the good old days, courts had a solution available when a general law was applied to a particular case in which it made no sense. Relying on an obscure doctrine of interpretation known as “the equity of the statute,” the common law courts would reason that the law’s authors never intended it to apply to the case at hand. This gave courts an escape hatch to avoid absurd results.

The logic of the doctrine, which dates back at least to the 1500s and to ancient Greece before that, would have run like this if applied to Bond’s case: When it passed its chemical weapons law, Congress never imagined it would apply to one woman trying to poison another. Given this obvious truth, Congress’s words should be interpreted not according to what they said, but what they surely would have said if asked about the particular case.

Sounds good, right? Yet for most of the last century, the doctrine of interpreting the statute to reach a just, equitable result has fallen on hard times. Some important scholars have argued that the law should be read to effectuate Congress’s purpose, which is a similar approach even if not completely the same.

But others, especially Justice Antonin Scalia and his followers, have claimed that the text of the law must always control, because only the text is clear and authorized by Congress. Scalia believes that discerning congressional intent is a game that gives power to unelected judges. Imagining hypothetical legislative intent, as the equity of the statute does, is an even bigger sin. In recent years, the textualist approach has been increasingly getting lip-service from the justices.

One serious problem with that approach is that it closes the interpretive escape hatch — so that the court is then forced to find new ways out of a dilemma in statutory interpretation. In Bond’s case, the court was unwilling simply to say that it was interpreting the law flexibly to avoid an absurd result.

Instead, the court claimed that there was a special, constitutional reason to be cautious in understanding the statute. See, Congress’s power to pass the chemical weapons law derived from its authority to pass laws implementing treaties. Everyone agrees such authority exists, even though it isn’t expressly stated in the Constitution. But not everyone agrees on whether Congress can use this power to pass laws that might trench on states’ rights. And arguably, the authority to regulate ordinary assaults is within the states’ exclusive power.

Drawing on all this, the court, in a 9-0 decision, announced that the law must be found ambiguous in what it called “this curious case” because read literally the statute would be improbably broad, even “boundless,” and would potentially impinge state prerogatives. It held that it would have needed a “clear indication” that Congress intended to apply the law to this conduct — and indication the court found lacking.

If this sounds fine, it isn’t. Despite the court’s apparent preference to cabin its holding to these strange facts, the decision will probably be read to limit Congress’ ability to legislate based on its power to implement treaties. In the future, it can be argued that a given statute shouldn’t be applied because Congress hasn’t been “utterly clear” that it does.

This may not bother the states’ rights justices, but it should bother anyone who cares about the U.S. fulfilling its international treaty obligations. And it should have brought a concurrence from, say, Justice Stephen Breyer, pointing out the problem and insisting that Congress’ power to implement treaties is unaffected.

Instead the concurrences came from Justices Scalia, Clarence Thomas and Samuel Alito, each in his own way trying to limit Congress’ powers vis-a-vis the states. Scalia made the wholly legitimate point that the text of the statute as written isn’t ambiguous at all, as the court claimed. The court invented the ambiguity to avoid the absurd result.

The upshot is not just that hard cases make bad law — it’s that by ignoring its traditionally available escape hatch, the court had to build a new, worse one. The principle it created may set a bad precedent. Sometimes the old ways are the best — and in this case relying on the traditional equity of the statute would have been the optimal solution.

To contact the writer of this article: Noah Feldman at noah_feldman@harvard.edu.

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