Textualism and the Supreme Court

Dr. Silver’s discussion of the spirit of the law in Chapter 5 reminded me of a case decision that was announced today (Monday) by the US Supreme Court. Although it is not really business related, the topic of the spirit of the law seems very evident. In the case Democrats and related groups argued that a new Indiana law was unconstitutional because it denied suffrage to people who are poor, old, or members of minority groups. It did this by requiring that any potential voter provide explicit photo identification prior to voting. Since members of these groups may find it harder to obtain the ID, it effectively denies them the right to vote. The Democratic Party argued that the very intent of the law (i.e. the “spirit”) was to reduce the number of potential voters of these groups, who typically vote democratic.

The Supreme Court voted to uphold the law. Justice Stevens (who frequently votes on the liberal side of the court) was in the majority and noted that the justifications for the law “should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.” Assume for a moment that the motivation (spirit) of the law was in fact to simply remove potential democratic voters. I would argue that this is morally unacceptable because it denies the nature of our liberal democracy (universal suffrage). However, what Justice Stevens is saying is that even if this were true, the law is still acceptable even if it’s original spirit is corrupt because it serves another useful purpose, which is to prevent voter fraud. Steven’s interpretation would seem to be an example of the textualism that Dr. Silver describes in the book. (This also seems to be an example of utilitarianism.)

This case would seem to have implications for business lobbyists and the laws they promote. Say a pharmaceutical company has a domestic factory for producing an expensive drug. A competing drug is introduced by a second company where a portion of it is manufactured it in a poor country that lacks a strong regulatory structure. It passes all the FDA tests, and is even perhaps formulated and quality tested domestically, but the first pharam company influences a law to be passed that restricts the sale of drugs with components that originate in countries with poor regulatory structures. Even if it were proven that that the first company only acted to protect its business interest, and was not even concerned with protecting the consumer, the basis for this case might allow this law to be considered acceptable. The spirit and motivation for the law is immaterial; the fact that it plausibly protects consumers from substandard drugs is what makes it acceptable.

I’m usually a conservative person who would not have a big problem with presenting an ID when I vote. I do express some unease, however, if the INTENT of a law in immoral even if it serves a useful purpose. I believe in justice and I think that there is some room for understanding intent as well as outcome.