Paradox of Self-Amendment by Peter Suber Section 15: Amendment by Interpretation A. Judicial amendments "Nay, whoever hath an absolute authority to interpret any written or spoken laws", Bishop Hoadly remarked, "it is he who is truly the Law Giver to all intents and purposes, and not the persons who first spoke and wrote them."[Note 1] That interpretation has a law-making effect is indisputable, although many would not take the principle as far as Hoadly did, denying the name of Law Giver even to the legislator. Even more than making law, however, interpretation can amend law, insofar as we distinguish these. Interpretation amends law whenever it qualifies unqualified language by finding an "implied" exception or limitation of scope, whenever it softens or limits qualifications in qualified language, and arguably whenever it departs from the original understanding of the legislators and public at the time the law was adopted. Filling gaps and silences may be distinguished from amendment if it is important to do so, although any law so "filled" is thereby changed from vague, general, inapplicable, or quiescent to specific on the point in question. An inescapable consequence of the amending power of interpretation is that the supreme law, the constitution, is not utterly supreme so long as it is subject to authoritative interpretation.[Note 2] The United States Supreme Court has often acted in this super-supreme role,[Note 3] which may of course be wholly legitimate under the constitution itself. This opens the possibility that the supremacy of the constitution may underlie the constitution's liability to authoritative interpretation: that supremacy is self-amending. It also opens the possibility that the supreme rule of change, the AC, could be changed by interpretation. That would obviously not constitute strict "self-amendment", but it could satisfy the need to avoid immutability by a method that does not require self-application of the AC. One need not be a cynic to assert that courts, occasionally, apply statutes where legislators did not intend or foresee application, and that they refuse to apply statutes where legislators intended that they should be applied, that they fill gaps and silences with policy-making effect, and that they stretch, shrink, or directly abandon the "plain meaning" of statutes. Cynicism and partisan politics do not usually enter the picture until we ask whether these practices are inevitable or legitimate. I will call these practices "judicial amendments" despite their very wide variety. This term avoids the broad connotation of unqualified "amendments" and the timidity of "quasi-" or "virtual" amendments. By this usage I do not mean to imply that the freedom to interpret, in whatever degree it actually exists for various courts, always results in amendment. I also mean to include whatever amendment can result from interpretation per se, not merely the obvious sort that can result from reinterpretation, overruling, gap filling, and policy-making. Judicial amendments have many functions. Those most often cited are the need to apply general rules to particular facts and old rules to novel facts, to avoid unjust results by excluding a particular type of person or action from the scope of unqualified language, to reconcile inconsistent rules or provisions, to give effect to legislative intent over plain meaning or vice versa, to flesh out vagueness deliberately left by a divided legislature, to do the will of the people when the legislature will not, to adapt old rules to evolving standards of decency and new technologies and styles of life, to assuage popular dissatisfaction with existing law and hence to prevent disrespect for government, and to forestall violence and revolution. The last few reasons may be summarized as the "safety valve" function of judicial amendments. Clearly if we read these functions as rationales, then they differ in their sufficiency, and one might add that their sufficiency just as clearly depends on historical circumstances. For example, Orfield suspects that the civil war might have been averted if the constitution had been easier to amend.[Note 4] The safety valve rationale has an important effect on the method by which we measure the people's consent to be governed by the existing constitution. If there were no judicial amendments, then all dissatisfaction would be channeled into legislative lobbying, attempts to amend the constitution, and very likely, violence. Hence the introduction of a (or another) safety valve or unofficial method of amendment reduces the pressure on other channels of change. One may note this functional side of judicial amendment independently of one's theory of the necessity or legitimacy of judicial amendment. The presence of judicial amendments, then, distorts our picture of the people's consent to be governed by the existing constitution, when that consent is measured primarily by their use and contentment not to use their AC (see Section 2). Another chief justification of judicial amendment may be called the "equitable" rationale. As long as equity is recognized as relief from the oppressive application of laws, it will permit what practically amounts to judicial amendment. Equity in its strict historical sense does not enter the adjudication of constitutional questions, but the need to provide relief from the unjust results of mechanical application does arise.[Note 5] If courts at all levels have any responsibility to assure justice, then that obligation may conflict with their other obligation to apply and interpret the law. The longest period in United States history in which no amendment was adopted through the federal AC was 61 years: from 1804 to 1865, between the Twelfth and Thirteenth Amendments. The second longest period was 43 years: from 1870 to 1913, between the Fifteenth and Sixteenth Amendments. These two periods alone comprise over half our history under the constitution, and in 1913 comprised nearly 85% of that history.[Note 6] This may show that contentment with the constitution has been high, that the amendment process has been too difficult, or that various safety valves including judicial amendments have made constitutional amendment comparatively unnecessary. Speaking of the longer of these two periods, McMaster has said,[Note 7] 105