On May 25, 2022, the United States Navy-Marine Corps Court of Criminal Appeals (“NMCCA”) handed down an opinion in United States v. Dereck Tabor, No. 202100046. The case involves the unpleasant question of whether encouraging someone via text message to commit self-abuse while lying in bed next to a sleeping child constituted a lewd act upon the child for the purposes of Article 120b of the Uniform Code of Military Justice. See United States v. Tabor, No. 202100046, slip op. at 2–3 (N-M. Ct. Crim. App. May 25, 2022). Ultimately, under military precedent, this becomes a question of whether the acts were committed in the presence of the child, which, in Tabor, turns on whether the child was aware of the lewd acts. Id. at 5. The provisions at issue, which have been amended and restated several times since the promulgation of the UCMJ, have vexed the military courts since they were introduced in 1951. Judge Christopher Deerwester’s opinion for the Court admirably traces the statutory developments and the responses of the military courts over the last sixty years and comes to the conclusion that it is sexual abuse of a child to encourage someone to abuse herself while the child sleeps next to her.
In and of itself, United States v. Tabor deals with lamentable criminal conduct by a member of the armed forces and a statute that has given the military courts no end of trouble. However, Senior Judge John Stephens’s separate concurrence is worthy of special attention. He begins by acknowledging that “we are supposed to use a textualist approach to statutory interpretation.” Id. at 42. But, in his view, textualism “has contributed to the confusion over the meaning and effect of Article 120b(c) . . . and whether it possesses some penumbric ‘awareness’ element.” Id. To “cut the modernist Gordian knot,” id., Senior Judge Stephens proposes returning to the classical legal tradition. Id. Looking to Adrian Vermeule’s Common Good Constitutionalism, Thomas Aquinas, and Blackstone’s Commentaries, Senior Judge Stephens proposes interpreting Article 120b from the perspective of the common good. See id. at 44–46.
Stephens frames his interpretation of Article 120b as an inquiry in the light of the common good and the natural law, observing that “A statute—a lex—is an attempt to codify a higher law that a nation or a people all know to be true and good, even if it were to limit individual freedom in certain circumstances.” Id. at 46. For Stephens, Article 120b is an attempt to codify the natural-law notion that “it is always wrong to sexualize children.” Id. at 45. Moreover, this approach was, in Stephens’s account, the implicit approach of the military courts before 2008. In their early considerations of the question the question, the military courts took ultimately a view informed by the common good and the natural law. However, in a case called Miller, the Court of Appeals for the Armed Forces took a textualist view of the statute. This has led to the tangled web of precedent and interpretation that Judge Deerwester traces in the opinion of the Court.
Stephens takes the opportunity presented by the case to make some general observations from the perspective of the classical tradition. His criticisms of positivism and textualism, especially from a sitting judge responsible for reviewing appeals from the Navy and Marine Corps’ courts-martial, are well worth reading. E.g., id. at 54. He also observes that the common good itself is harmed when individuals are “allowed to indulge a vulgar prurient interest towards a child and . . . [take] increasingly reckless steps toward ‘more serious sex crimes of a perverted nature’ . . .,” id. at 55, even if the child is unaware of the conduct. Stephens’ comments—far from being mere obiter dicta—offer a window into the considerations of a sitting judge grappling with approaching a concrete question through the lens of the common good and the natural law, and for that reason alone they are well worth considering.
One criticism wielded against Vermeule’s common-good constitutionalism or the classical legal tradition is that it is fundamentally right-wing progressivism. That is, judges are unmoored from text and meaning to achieve right-wing policy results. (For my part, I do not actually think that is a criticism so much as an advertisement, but I am perhaps less in love with a long, well remunerated defeat than many professional right-liberal legal commentators.) Stephens’s opinion is a definitive answer to that criticism. He answers it squarely when he writes:
I am not suggesting judges become Platonic Guardians or look to penumbras or nebulous “evolving standards of decency” to interpret statutes. Recognizing that the written law is sometimes a poor reflection of the unwritten law—in this case, the idea that sexualizing children is always wrong—is a good starting point. To the extent that legal positivism is in the judge’s way, discarding that idea that would be beneficial, too, because positivism recognizes nothing outside the lex—a stance which incidentally leaves more room for judges to govern, not less.
Id. at 53.
Pat Smith
