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Mon, Jul. 5th, 2010, 09:55 am
Legislative interpretation: why it matters!

Note: I’m not interested in hosting discussions about the merits of or difficulties with breastfeeding in this space, so I reserve the right to freeze or delete comments that do so. I’d prefer that you insult neither me nor my mom. The law I’m going to be talking about starts with a legislative finding that “breast is best,” so the fact of that finding is relevant, but that’s it.

Laws, like television shows, require interpretation. This is why John Roberts was dangerously misleading in his confirmation hearings for Chief Justice of the United States Supreme Court when he described a judge’s job as “calling balls and strikes.” A judge is often simultaneously setting the boundaries of the strike zone and defining the lines the runners need to follow. Also the shape of the bat and the distance from the mound. Well, I hope you get the point.

I’m going to start with a classic example, a debate between Lon Fuller and H.L.A. Hart (here’s a brief article by a smart guy on the subject) about a law that bans “vehicles in the park.” Law professors have used this example to teach legislative interpretation for decades, because it forces us to confront questions of intent versus the letter of the law, how we decide what the letter of the law is, and how we deal when there was “no intent,” which is often the case with privilege. It’s no accident, in other words, that the examples we use to test the rule are often about childcare and disability—no accident because there was likely no intent at all with respect to people who weren’t presently unimpaired adult men.

So: are ambulances allowed in the park? What about baby buggies (updated to strollers)? Wheelchairs? Motorized wheelchairs? If your answers to the last few questions are “yes, obviously,” what about things like Segways or pedicabs in situations where the person being carried is at the present time having no difficulty walking? If you want to distinguish based on need for the device to access the park, then you are adding in a meaning to “vehicles”—“devices that people don’t need to use to access the park”—that’s both not obvious from the face of the statute and not the usual/dictionary definition of “vehicles.” Which is okay! It’s standard legislative interpretation technique!

You might want to inquire into the point of the law. If the legislators were thinking about the potential damage and noise disruption from cars and trucks, then that suggests that any people-powered device might be okay. But they might have been thinking about the loveliness of walking uninterrupted, free from bicyclists and skateboarders as well as motorcycles. The legislators probably just weren’t thinking at all about the needs of people with mobility impairments, plus there’s technological change post-enactment to take into account, which brings us to motorized wheelchairs, Segways, and even bionic legs. We often say “if they had thought about this problem, they would have thought X,” and sometimes that’s persuasive; but often enough the counterfactual is about making the legislators hold our own beliefs and not theirs.

Some people will still insist that the meaning of “vehicle” is transparent and requires no interpretation. Oddly, those people often disagree about the result of the law applied to the stroller! (They generally have to take the stroller with the pedicab or exclude them both.) Relying on dictionaries and other nonspecific sources is also a standard technique: the law is the law, and if you don’t like the results, then get the legislature to change it. (Which, these proponents might continue, the Americans with Disabilities Act did by overriding all laws of this type to the extent they require accommodation of the needs of people who fall within the scope of the ADA; parents with strollers are still out of luck.)

Come now to breastfeeding laws! After well-publicized incidents in which women in public places with their infants, where both adults and infants were welcome, were thrown out or yelled at for breastfeeding, a number of U.S. states passed laws to protect breastfeeding in various ways. (There’s a discussion here, though it actually ignores the point that caught my attention, lumping two different types of laws together.) There are a number of laws that specify that a woman has a right to breastfeed (as opposed to saying that breastfeeding isn’t indecency, which protects her from some kinds of enforcement but allows private businesses to continue to kick breastfeeders out). Many of those right-to-breastfeed laws specify that they apply wherever the mother and child are both allowed to be.

But some just talk about the mother. (Here's a discussion that notes the difference.) Illinois is one of those: “A mother may breastfeed her baby in any location, public or private, where the mother is otherwise authorized to be ….”

So, does that mean that a venue may categorically ban infants? First, I couldn’t find any actual cases/guidance in my admittedly quick Westlaw trawl, so this is pure law school speculation. Here’s what I think is on balance the better answer—but note that I tend towards “the law is the law, even if it’s stupid” in many cases. It’s easy to add in “and the child is allowed”; other states have done so; if the law only talks about the mother’s right to be in a place, then it overrides general bans on infants that are otherwise perfectly acceptable/enforceable.

But you could get an A on a legislative interpretation exam with the alternate argument: the problem the legislature confronted was of people throwing mothers and infants out of places that mothers and infants were welcome, merely for breastfeeding; the legislature did not consider full infant bans; infant bans are often well-justified (certain areas of hospitals; roller coasters); the law doesn’t create any way of distinguishing a health/safety-related infant ban from one that’s a matter of social nicety, so if we disallow the latter we also invalidate the former; when a venue is willing to ban infants entirely, it’s not discriminating against breastfeeding or offensively treating breastfeeding like an indecent/sexual act, which was the targeted problem. Also, the Illinois law is remarkably badly drafted, as evidence this gem in the same sentence: “a mother considering whether to breastfeed her baby in a place of worship shall comport her behavior with the norms appropriate in that place of worship.” This is either unconstitutional or meaningless or both; the legislature was not being very careful in its language. Given all this, we should read the law to mean that it’s legitimate to ban infants, but not legitimate to ban breastfeeding once you allow infants.

There are responses to these arguments too. For example: the legislature can rely on people not to take their infants into areas of hospitals where infection is a big risk or on roller coasters; we might want to avoid pretextual claims that infants are banned when people are really upset about breastfeeding; infant bans are part of an antichild culture that contributes to difficulties breastfeeding, so the law does target them too; if infant bans are actually ok then the legislature can amend the law to add in a provision about the child.

If you wonder why judicial philosophy is such a big deal in U.S. politics, it’s not just because of abortion and gun control. It’s about issues like this, and it’s about whether you’ll be forced to arbitrate any dispute you have with your employer with an arbitrator who’s paid by your employer and whose rules tilt towards the employer, instead of suing; and it’s about whether the fact that the FDA pre-approves drugs means that you can’t win a lawsuit against the manufacturer when the drug harms you. All those things and many more require courts to interpret laws that some people will tell you obviously mean one thing and others will tell you obviously mean the opposite.

comment count unavailable comments on DW | reply there. I have invites or you can use OpenID.

Mon, Jul. 5th, 2010 02:11 pm (UTC)

Hee, I love this post.

Also I swear to God, if I could wave my magic wand and make the Obama Administration push for one legislative fix to overrule one line of Supreme Court precedent, it would be to invaidate employment agreements that specify mandatory arbitration for civil rights violations.

Mon, Jul. 5th, 2010 02:48 pm (UTC)
(Anonymous): Another conundrum

The statute permits only mother-baby breastfeeding. Presumably, public breastfeeding by a wet nurse would still be impermissible.

Mon, Jul. 5th, 2010 08:01 pm (UTC)
rivkat: Re: Another conundrum

Good point--"the statute means what it says" approach doesn't actually necessarily produce the most breastfeeding-friendly interpretation in all situations.

Mon, Jul. 5th, 2010 02:53 pm (UTC)

I'm not about to post on the merits of breastfeeding. Well, not a whole lot. But considering that the purpose of having law is to protect us from harm, not just make us all feel warm and fuzzy, I'm confused as to why there even needs to be a law about breastfeeding. And therefore I must touch on the merits (or harm) of breastfeeding in public.

When America decided to become so afraid of the sight of boobs? And not jiggly, bouncing, eroticised fun-bags-- I'm talking about boobs that are nourishing helpless children.

If you're a private business, I guess I can see having the right to request that women in your establishment use a small privacy blanket (that you have extra of and can provide) or a private area for changing and feeding (that you maintain and provide). But public or private, it's a boob. A BOOB.

Why are there even laws about boobs? Did anyone exposed to a breast ever get hurt, ever? (And I don't mean in the case of sexual assault where breasts happened to be seen, as well; I mean just in the act of SEEING a breast.)

Did anyone's eyeballs explode? Was there ever a case of a human psyche so traumatized by the sight of a mammary and nipple, that sanity was never recovered? Does some asshat out there fear they will catch breast cancer cooties? Are men out there who, upon seeing a woman nourishing her child, will be so overcome with lust that they cannot help but ravish that woman in public? What's the thinking, here?

I mean, all throughout Europe, there are thousands upon thousands of sacred images of the infant Jesus suckling at Mary's naked breast--if it's good enough for the Mother of God, why isn't it good enough for conservative America?

Seriously, one case, give me one case, where an exposed chest ever did actual damage to anyone.

In point of fact, before the invention of formula, how many people would have DIED if they HADN'T seen a boob at some point--whether it belonged to their mother or wet nurse?

I'd argue that boobs SAVE lives, and not only should they be welcome in all spaces, but they should get their own damn holiday, complete with parade and free milk for everyone. If there was ever going to be a law about boobs, it should only be about the creation of National Boob Appreciation Day.

Mon, Jul. 5th, 2010 10:28 pm (UTC)

Word. To your entire response.

Tue, Jul. 6th, 2010 07:06 pm (UTC)


Tue, Jul. 6th, 2010 03:19 am (UTC)

I'd argue that boobs SAVE lives, and not only should they be welcome in all spaces, but they should get their own damn holiday, complete with parade and free milk for everyone. If there was ever going to be a law about boobs, it should only be about the creation of National Boob Appreciation Day.
I want to post this on my wall.

Tue, Jul. 6th, 2010 07:05 pm (UTC)

You may if you wish, no need to link or credit or anything! :-)

Tue, Jul. 6th, 2010 05:21 pm (UTC)

I once heard on the radio that a guy suffocated between a woman's breasts at a strip club. So it's possible!!!

I'm going to write my senators about creating a National Boob Appreciation Day. You rock so much.

Tue, Jul. 6th, 2010 07:08 pm (UTC)

Perhaps strippers should be required to get a tattoo of a warning label... something like, "Do not use as flotation devices--these breasts are not a toy! Children over 3 years of age could suffocate!"

I am certain all of congress would appreciate such correspondence!

Mon, Jul. 5th, 2010 03:39 pm (UTC)

My brain is telling me that this was one of the Blago administration "special interest" laws, many of which are completely screwy in the ways they were worded. Although the Quinn administration doesn't seem to be much better, there's a couple of laws which went into effect his year which are kind of screwy too. Welcome to IL.

Reading some IL laws with a creative mind might drive you to the funny farm.
(Deleted comment)

Mon, Jul. 5th, 2010 08:02 pm (UTC)
rivkat: Re: your moment of anto-nen

If I haven't told you, remind me sometime about Scalia and the "full-time mother."
(Deleted comment)

Mon, Jul. 5th, 2010 11:34 pm (UTC)
rivkat: Re: your moment of anto-nen

You have summarized my reaction nicely! My mom: always mom! Never not mom! Fortunately he took the language out.

Mon, Jul. 5th, 2010 06:10 pm (UTC)

Laws often evolve to reflect changing social norms; this is very much the case with breastfeeding. Bottle feeding was the norm 50 years ago, now we know that it is not the best way to raise a healthy infant.

Arguably, the biggest problem is that establishments balance the issue of a mother's right to breastfeed against the still prevailing tendency for people to be uncomfortable with seeing any kind of exposed breast. Whether or not people SHOULD be uncomfortable is not the question - they are, and establishments like to cater to their customers. The law and society in general currently reinforces that norm. Breastfeeding is therefore essentially an exception to another law and deeply rooted societal norm.

Public breastfeeding, as I see it, needs to be legal because otherwise women might have to travel long distances with dehydrated and/or screaming infants. Women with small children should be free to do what they need to do in public.

And as you point out, exceptions are challenging to establish and enforce, because you always run into exceptions to the exception. At what age (of the child), for example, does it become problematic to breastfeed a child in public? Except in case of medical illness, a child doesn't *have* to breastfeed by 2 years of age (in a post-industrial country); they can get nutrition other ways. While in no way do I argue whether or not a parent SHOULD breastfeed at that point, they no longer NEED to do so, and therefore perhaps the allowance for breastfeeding an infant in public no longer applies. Maybe not. Maybe we should be working to get rid of the ban on public breast exposure. I don't know, but we'll find out where the laws and societal norms take us.

And yes, this is why constitutional literalism is stupid. There are always cases that don't QUITE fit within the bounds of a law, and it is the responsibility of the judge to figure out if the law applies or not.

This is not even taking into account rogue Juries and how they apply to the law. I have been told asking about jury nullification in jury selection is a very good way to get yourself excused.
(Deleted comment)

Mon, Jul. 5th, 2010 10:25 pm (UTC)

Great post and you bring up a lot of things that I don't think people realize can be used to either help you or do a lot of harm depending on who is doing the interpreting.

Wed, Jul. 7th, 2010 05:30 am (UTC)

i love this post. of course, then i think about the fact that our federal laws are drafted by 20-something year old congressional aides and want to weep.