Wonderful concurring opinion from the Seventh Circuit’s Judge Richard Posner on interpretation of decades old statutes in light of changed circumstances

Hively v. Ivy Tech Community College of Indiana, ___ F.3d ___ No. 15-1720, (7th Cir. Aril 4, 2017)

Judge Posner is the most prolific author on the federal bench, having written hundreds or articles in general circulation publication across the political spectrum and legal journals, as well as enough books to fill up 6 web pages on Amazon’s web site on subjects legal, political, and social. He is not afraid to speak his mind, and is always provocative. In last week’s 7th Circuit en banc decision finding that Title VII of the Civil Rights Act of 1964 barred discrimination on the basis of sexual orientation* rather than the a person’s sex at birth, he wrote a wonderful concurring opinion that begins with a few paragraphs on the different methods of interpreting a statute. Judge Posner’s language is so concise and precise I will not degrade it by summarizing it, but just quote it at length. I know I will find it useful going forward as I encounter interpretation of statutes and the precedential on older cases in light of the evolution of things like juvenile brain science and advances in forensic evidentiary methods. Here is what he wrote:

I agree that we should reverse, and I join the majority opinion, but I wish to explore an alternative approach that may be more straightforward.

It is helpful to note at the outset that the interpretation of statutes comes in three flavors. The first and most conventional is the extraction of the original meaning of the statute—the meaning intended by the legislators—and corresponds to interpretation in ordinary discourse. Knowing English I can usually determine swiftly and straightforward- ly the meaning of a statement, oral or written, made to me in English (not always, because the statement may be garbled, grammatically intricate or inaccurate, obtuse, or complex beyond my ability to understand).

The second form of interpretation, illustrated by the commonplace local ordinance which commands “no vehicles in the park,” is interpretation by unexpressed intent, where- by we understand that although an ambulance is a vehicle, the ordinance was not intended to include ambulances among the “vehicles” forbidden to enter the park. This mode of interpretation received its definitive statement in Black- stone’s analysis of the medieval law of Bologna which stated that “whoever drew blood in the streets should be punished with the utmost severity.” William Blackstone, Commentaries on the Laws of England *60 (1765). Blackstone asked whether the law should have been interpreted to make punishable a surgeon “who opened the vein of a person that fell down in the street with a fit.” (Bleeding a sick or injured person was a common form of medical treatment in those days.) Blackstone thought not, remarking that as to “the effects and con- sequence, or the spirit and reason of the law … the rule is, where words bear either none, or a very absurd signification, literally understood, we must a little deviate from the received sense of them.” Id. *59–60. The law didn’t mention surgeons, but Blackstone thought it obvious that the legisla- tors, who must have known something about the medical activities of surgeons, had not intended the law to apply to them. And so it is with ambulances in parks that prohibit vehicles.

Finally and most controversially, interpretation can mean giving a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text)—a meaning that infuses the statement with vitality and significance to- day. An example of this last form of interpretation—the form that in my mind is most clearly applicable to the pre- sent case—is the Sherman Antitrust Act, enacted in 1890, long before there was a sophisticated understanding of the economics of monopoly and competition. Times have changed; and for more than thirty years the Act has been interpreted in conformity to the modern, not the nineteenth- century, understanding of the relevant economics. The Act has thus been updated by, or in the name of, judicial interpretation—the form of interpretation that consists of making old law satisfy modern needs and understandings. And a common form of interpretation it is, despite its flouting “original meaning.” Statutes and constitutional provisions frequently are interpreted on the basis of present need and present understanding rather than original meaning— constitutional provisions even more frequently, because most of them are older than most statutes.

Title VII of the Civil Rights Act of 1964, now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted. But I need to emphasize that this third form of interpretation—call it judicial interpretive updating—presupposes a lengthy interval between enactment and (re)interpretation. A statute when passed has an understood meaning; it takes years, often many years, for a shift in the political and cultural environment to change the understanding of the statute.

* The legislative history of the prohibition has been problematic since the first emoloyment cases on sex discrimination. The provision was inserted at the last minute following a last ditch attempt to defeat the Civil Rights Act by adding protections for women, something opponents of the act thought would kill it. Instead, the acts supporters embraced it with no debate. See R. Bird, More an a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination of the 1964 Civil Rights Act, Wm. & Mary Journal of Women and the Law, 137 (1997).I am fairly certain that sexual orientation was on no mind of anyone voting on the act in 1964. This is what makes Judge Posner’s concurrence so compelling.

Picture of Judge Posner & his cat from The New Yorker by way of abovethelaw.com

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