by Barry Goldman
Imagine a hunter, a tree, and a squirrel. The hunter is on the ground, the squirrel is clinging to the tree, and the tree is between two of them. As the hunter moves, the squirrel moves, always keeping the tree between them. The hunter goes around the tree. Does he go around the squirrel?
Yes. The squirrel is in the tree, and the hunter went around the tree. Therefore, the hunter went around the squirrel.
No. In order to “go around” the squirrel, the hunter must at some point be in front of the squirrel, and at other points he must be to the squirrel’s right, behind the squirrel, and to the squirrel’s left. That’s what it means to “go around” something. The hunter in the hypothetical was always directly facing the squirrel. He was never to the squirrel’s left or right and he was never behind the squirrel. Therefore, the hunter did not go around the squirrel.
So it depends on what “go around” means. If you adopt one definition, the hunter went around the squirrel. If you adopt the other, he didn’t. So what? Who cares?
That’s fair. But it isn’t so much the hunter and the squirrel I’m concerned about. I’m interested in legal disputes. And the judicial interpretation of contracts and statutes presents just this question: When we have competing definitions, how should we go about determining which one to adopt?
Let’s try another example. Is a taco a sandwich? That sounds like the same kind of silly waste of time as the hunter and the squirrel problem, and it is. Until it becomes the subject of a lawsuit.
In White City v. PR Restaurants the Massachusetts Superior Court faced exactly this question. PR Restaurants operated Panera Bread stores in New England, including one at White City Shopping Center. PR’s lease contained an exclusivity provision that prevented White City from leasing space elsewhere in the shopping center to any other business that sold sandwiches. White City entered into a lease with a company called Chair 5 to operate a Qdoba restaurant. PR objected on the grounds that the tacos, burritos, and quesadillas to be sold at Qdoba would violate the exclusivity provision in PR’s lease, and it sued to enjoin White City from entering into the lease with Chair 5.
If a taco is a sandwich, allowing Qdoba to open in the shopping center was a violation of PR’s lease. If a taco is not a sandwich, there was no violation. The full majesty of the American legal process was brought to bear on the question. Lawyers wrote pleadings. A hearing was held. A judicial opinion was drafted. The whole thing was so impressive a display of legal wisdom that Mr. Justice Scalia wrote about it in his book Reading the Law. The court said:
Given that the term “sandwiches” is not ambiguous and the Lease does not provide a definition of it, this court applies the ordinary meaning of the word. The New Webster Third International Dictionary describes a “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Under this definition and as dictated by common sense, this court finds that the term “sandwich” is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans. As such, there is no viable legal basis for barring White City from leasing to Chair 5.
Justice Scalia approves. He wrote:
The injunction was properly denied on grounds that no reasonable speaker of English would call a taco, a burrito, or a quesadilla a “sandwich.”
And there the matter stood until the case of Martin Quintana v. Fort Wayne Plan Commission reached the Superior Court in Allen County, Indiana. Quintana, a developer, entered into a Written Commitment with the Plan Commission that changed the zoning of his real estate from single family to limited commercial subject to certain limitations. Section 1.1 of the Written Commitment prohibits “restaurants, including fast food style restaurants (except as described in Section 12.1). Section 12.1 of the Written Commitment articulated the following limited exemption:
A sandwich bar-style restaurant whose primary business is to sell “made-to-order” or “subway-style” sandwiches (which by way of example includes, but is not limited to, “Subway” or “Jimmy John’s”, but expressly excludes traditional fast food restaurants such as “McDonalds”, “Arbys” and “Wendys”), provided that any such restaurant shall not have outdoor seating or drive-through service. For the avoidance of doubt, the sale of alcoholic beverages is expressly prohibited upon the Real Estate.
Mr. Quintana proposed to lease space to a “Mexican restaurant called ‘Famous Taco,” which will serve made-to-order tacos, burritos, and other Mexican-style food items.” Once again, if a taco is a sandwich, the restaurant is permitted. If a taco is not a sandwich, it’s not.
And once again, the vast machinery of justice took up the question. Lawyers were retained, briefs were filed, hearings were held. The Plan Commission ruled against Quintana, and he took the matter to court.
The court record included Quintana’s Verified Petition for Judicial Review, the Court’s Order for Remand, the Plan Commission’s Submission of Supplemental Board Record, Quintana’s Supplemental Brief, the Plan Commission’s Supplemental Response, and Quintana’s Supplemental Reply. After two years of litigation, Judge Bobay issued the court’s ruling:
The proposed Famous Taco restaurant falls within the scope of the general use approved in the original Written Commitment. The proposed Famous Taco restaurant would serve made-to-order tacos, burritos, and other Mexican-style food, and would not have outdoor seating, drive-through service, or serve alcohol. The Court agrees with Quintana that tacos and burritos are Mexican-style sandwiches, and the original Written Commitment does not restrict potential restaurants to only American cuisine-style sandwiches. The original Written Commitment would also permit a restaurant that serves made-to-order Greek gyros, Indian naan wraps, or Vietnamese banh mi if these restaurants complied with the other enumerated conditions.
A taco is a sandwich. Quintana can open his restaurant.
Several questions present themselves: Don’t these people have anything more useful to do? How can reasonable adults justify spending two years of their lives on this bullshit? What possible justification could there be for this nonsense to take two years? Didn’t Judge Bobay read Scalia’s book?
All these questions are perfectly legitimate, and I share the concern they express. The legal system is fundamentally flawed. It takes too long and costs too much. It’s gummed up with legaldigook to the point of unintelligibility. I’ve been complaining about it for years, here and elsewhere. But the situation has now become far worse. During what we might call the Scalia era, the courts concerned themselves with text and with the ever-so-careful reading of statutes and legal documents. This was textualism. It had principles. For instance, the “Supremacy-of-Text Principle.
The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.
During the Scalia era it was an article of faith that:
Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.
Textualists like Scalia were not always intellectually honest. They let their policy preferences bleed into their decisions. They often failed to live up to the principles they espoused. But they had principles.
Now Scalia is dead, and the Scalia era is over. Today’s Supreme Court has no more use for textual analysis than it has for stare decisis or judicial restraint. And it doesn’t even pretend to care. To the conservative supermajority, concern about what it says in the text of a law or the text of the constitution is at most a quaint vestige of an era when they didn’t have enough votes to just make things up.
There is nothing in the Constitution that supports the court’s presidential immunity decision. Nothing. They completely made it up.
We will long for the days when the courts wasted our time and money on silly textual disputes. We will weep for the time when we went to court to determine whether a taco is a sandwich or the hunter went around the squirrel.