In 1899, Ollie Holmes said that the way to interpret a statute is to figure out what the words of the statute would have meant if an ordinary speaker of English had spoken them at the time when they were written. This is good, because we often have no way of knowing that, except if we ask what an ordinary speaker of English would have meant by them. Let s say you read a sentence, knowing nothing about who wrote it or why. No matter how long you stare at it, you can t disambiguate it. I d rather say a statute is a command .
People can agree on commandments.
Yet I believe that a judge has the right to ignore a law passed by the legislature if he considers the law unreasonable. I disagree with Holmes idea that it was his duty to enforce statutes that would carry his fellow citizens straight to hell, if that s what they wanted. If we think of a statute as a command from the legislature, to be enforced by the judiciary, then the next question is whether that command gets communicated well. Think, for example, about the Constitution s command that the President must be at least 35. By contrast, look at U.S. v. Locke .