POLITICS SEPTEMBER 10, 2012
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BRYAN A. GARNER:
Hardly was I surprised that Judge Richard A. Posner did not warmly embrace Reading Law, the book on textualism I coauthored with Justice Antonin Scalia. But I was unduly sanguine in thinking that my friendship with Judge Posner (such as it is—we’ve shared several meals since the 1990s and have always had convivial conversations) would ensure at least a fair reading of our book on “fair reading.”
The tendentious hostility of Posner’s review in The New Republic, containing allegations of pervasive misrepresentations in the new Scalia‑Garner book, did come as a surprise—a most disappointing one. A response is in order.
Judge Posner is cited six times in the main text of Reading Law—three of those being negative but restrained. (Three times we cite his work positively.) Despite the telling points made against his earlier positions—such as the idea that canons of construction are disingenuous “fig leaves” used to justify uncandid decisions actually made on other grounds—Posner, in his 5,000-word book review, nowhere acknowledges these criticisms, much less tries to answer them. He instead smears the book with accusations of sloppy research and poor case explanations.
In a series of blog posts for National Review Online, Edward Whelan has done a masterly job of demonstrating why the six examples that Judge Posner assails—examples of Scalia’s and my research and case explanations—are entirely correct.
My coauthor and I knew that a book on textualism would be inimical—if not seriously threatening—to those who promote nontextual means of deciding cases in which a governing legal text is at issue. It would inevitably be attacked.
We therefore took precautions. Please bear with me as I say a word about them. Justice Scalia and I wrote the first drafts of the case explanations ourselves, and we tried to be unimpeachably accurate in them. Beginning more than a year before publication, I had four lawyer‑colleagues at LawProse—with 55 years of professional experience among them—verify the accuracy of every statement made about every case in the book. Meanwhile, both Justice Scalia and I reread many cases where either of us doubted what had been said about them.
Most of Judge Posner’s criticisms of our research were founded on the assertion that the cases cited used, in their rationales, more than the single canon being illustrated. That would be a telling criticism if the purpose of the cases had been to show the authoritativeness of the canon. But that was not the purpose. In choosing cases, we wanted examples that (1) contained lively problems that could be readily explained without bogging down readers, and (2) involved discrete textual points. We were looking for interesting issues that would illustrate good textualism—through our explanations. All the canons discussed are well established and have been frequently applied; the examples are there merely to show how each particular canon works. That a given court considered other factors besides the canon is quite irrelevant to our purpose. Indeed, it would be very hard to find examples in which a single canon was the sole basis for the decision.
Reading Law is a normative, prescriptive book, as we’re at some pains to emphasize on page 9: “Our approach is unapologetically normative, prescribing what, in our view, courts ought to do with operative language.” So in citing examples, we were much more interested in the textual problems posed than in the solutions that courts provided. Instead, we explained our solutions, often noting points of agreement and disagreement with the courts that actually decided the cases.
What I’ve said so far is enough to explain why Judge Posner went seriously off the rails in his review. But it’s worth setting straight some of his particular misstatements.
Perhaps the biggest is this non sequitur: “Heller [the gun‑control case] is the best‑known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism.”
What? I spent three‑and‑a‑half years immersing myself in the literature of statutory interpretation, scouring hundreds of books and a thousand‑plus articles to write a full‑length treatise, merely to help my coauthor respond to criticism about one case? What a breathtakingly and self‑evidently farcical statement. Why write such a tome if its “real” purpose covers less than three pages? (There are two citations to Heller in the introduction and two pages totaling two paragraphs of discussion about Heller in the context of examining legal history.) No, that wasn’t the book’s purpose.
What motivated Justice Scalia and me to write this ambitious book was our desire to bring clarity to what has become the most muddled aspect of judicial decision‑making: interpretation. It had nothing to do with justifying Heller or any other particular case. But Judge Posner’s criticism of that decision is worth looking at.
Judge Posner points to a supposed contradiction: that the book condemns the use of legislative history, yet “Scalia is doing legislative history when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller.” Judge Posner knows very well that “legislative history” does not embrace what the Heller opinion used—the history of the times when the legislation (or constitutional provision) was adopted, including the understandings reflected in contemporaneous legislation and scholarly commentary. “Legislative history” means the floor debates, committee hearings, and committee reports of the legislature or convention that adopted or proposed the text in question. It was not the Court’s opinion in Heller but Justice Stevens’s dissent that used (and, we think, misread) the Second Amendment’s drafting history. Lawyers know the distinction, but Posner’s depiction of a contradiction where there is none, in a magazine directed to non-lawyers, preys on the unknowledgeable.
Judge Posner’s critiques repeatedly miss the mark. Take, for example, his opening criticism, which deals with the book’s treatment of a sign that reads “no person may bring a vehicle into the park.” The book considers whether that prohibition would apply to, among other things, an ambulance. Judge Posner would have the reader believe that “[f]or Scalia and Garner, the answer is yes,” simply because “[a]fter all, an ambulance is a vehicle—any dictionary will tell you that.” That is a gross distortion of our analysis, which explicitly rejects an uncritical acceptance of definitions from just “any dictionary.” Our analysis declines to apply the available dictionary definitions of “vehicle”— “means of conveyance with wheels,” “receptacle in which something is placed in order to be moved,” and “self-propelled conveyance that runs on tires”—because these would literally cover “remote-controlled model cars, baby carriages, tricycles, or perhaps even bicycles.” The book rejects that meaning since, as we explain, it is common usage that we are looking for, and not all colloquial meanings are to be found in dictionaries.
Adding insult to distortion, Judge Posner claims that we “later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout the book.” To the contrary, we do not retreat. And nuance is not equivocation. The assertion that we “retreat” is consistent with a pattern of distortion exhibited throughout his review.
My coauthor and I consistently maintain that ambulances are covered by the prohibition but also explain that “[s]ome of the imperfections [in a statute] can be cured or mitigated by doctrines and devices other than the mauling of text . . . . For example, it may well be that the undeniable exclusion of ambulances by the text of the ordinance is countermanded by an ordinance or court‑made rule exempting emergency vehicles from traffic rules.” Posner ignores that and pounces on a statement made 273 pages later as a retreat: “The driver who violates a criminal law against high‑speed driving while taking a seriously injured person to the emergency room could be excused by the common‑law defense of necessity.” This is not a retreat: it’s an illustration of a mitigating doctrine. Posner himself distorts his claim by first referring to the ambulance in the third paragraph of his review, unsupported by evidence, then presents his off‑point “evidence” only four paragraphs from the end of the essay—thirty paragraphs later.
Consider another of Posner’s supposed gotchas (all of which suggest an overhasty and determinedly unsympathetic reading). Here’s what Posner says:
Yet in further obeisance to the dictionary Scalia and Garner commend a court for having ordered the acquittal of a person who had fired a gun inside a building and been charged with the crime of shooting “from any location into any occupied structure.” They say that the court correctly decided the case (Commonwealth v. McCoy) on the basis of the dictionary definition of “into.” They misread the court’s opinion. The opinion calls the entire expression “from any location into any occupied structure” ambiguous: while “into” implies that the shooter was outside, “from any location” implies that he could be anywhere, and therefore inside. The court went on to decide the case on other grounds.
But here are the facts. The opinion did not call the entire expression “from any location into any occupied structure” ambiguous. The court said: “[O]ur examination of the plain meaning of the two phrases [from any location andinto] reveals a latent ambiguity in the statute; one phrase must be interpreted as modifying or limiting the other, and thus principles of construction are implicated.” Commonwealth v. McCoy, 962 A.2d 1160, 1167 (Penn. 2009). In determining the meaning of the phrases, the court said: “To the ordinary, intelligent citizen looking to the conduct proscribed by [the statute], the plain meaning of the word ‘into’ suggests that the shooter must be located outside the structure; otherwise, he cannot discharge his weapon into an occupied structure” and “reading the statute so that ‘into’ qualifies the term ‘from any location’ yields logical results that do not require adding additional terms to the statute. Under this construction, to be deemed criminal, the statute requires that the defendant discharge the firearm from any location outside the structure, and that the projectile move into the structure. Thus, ‘into’ modifies the meaning of ‘from any location’ to include only any location from which the shooter can physically shoot ‘into’ the occupied structure, including other structures, moving vehicles and any other location outside of the occupied structure.” Id. at 1168 (emphasis added). So Posner’s statement that the shooter “could be anywhere, and therefore inside” is patently incorrect.
The court did not, as Judge Posner asserts, decide the case on other grounds. Perhaps he was mistakenly looking at the dissenting opinion. A little fact‑checking would have prevented this and other blunders in Judge Posner’s review.
Most of the reviewers thus far—the book was released only 10 weeks ago—have acknowledged the service we’ve provided in illustrating the 57 valid canons of construction. In the New York Times (7-16-2012), Stanley Fish—whose work we cite negatively four times, by the way—praised Reading Law “for making complicated and sometimes arcane points of doctrine seem accessible and even plain.” That was indeed our goal.
Edward Whelan has demanded that Judge Posner run a prominent retraction and apology. That would be gratifying, since reputations can be marred by such a high‑profile literary rampage. But I’m not holding my breath.
RICHARD POSNER:
Bryan Garner’s letter repeats criticisms by the National Review blogger Ed Whelan, a former Scalia law clerk who is the head of the Ethics and Public Policy Center, an extreme conservative think tank preoccupied with homosexuality (which Whelan believes is destroying the American family), abortion, embryonic stem cell research, and other affronts to conservative theology.
I have trouble believing Garner when he says that four lawyers at his company verified the accuracy of every statement made about every case in the book. The book’s Acknowledgements page thanks 96 (!) persons for helping with the book, and there is no reference to four lawyer-colleagues who slaved to make sure that every statement was accurate. The book is riddled with inaccuracies, illustrating the adage that too many cooks spoil the broth. The Acknowledgments thank nine “Garner Law Scholars” at a Texas law school who “briefed dozens of cases for our [the authors’] consideration.” I am guessing the Garner Law Scholars were the source of many of the mistakes.
Garner says that what I think are mistakes in the book’s description of cases are merely the result of the authors’ decision to “exclude other factors besides the canon” (statutory principle) that each case illustrates “because the examples are there merely to show how each particular canon works” and so the fact “that a given court considered other factors besides the canon is quite irrelevant to our purposes.” That is untrue. When they say that a court “perversely held that roosters are not ‘animals’” they are saying that a court erred by failing to follow a dictionary definition; in fact the court said that roosters are animals, but then gave reasons why this was not dispositive, reasons Scalia and Garner ignore. Garner now says “it would be very hard to find examples in which a single canon was the sole basis for the decision.” Precisely! The authors aren’t going to pin themselves down to a canon that might generate a result they don’t like. They want to play with 57 canons, many of them as I pointed out not textual.
Their approach is typified by the example Garner gives in his letter of a sign that reads “no person may bring a vehicle into the park.” Early in the book the authors say that an ordinance that excludes ambulances from the prohibition “is not the ordinance that the city council adopted,” for an ambulance is a vehicle. Hundreds of pages later they retract that conclusion, citing the common law defense of necessity. Garner in his letter calls this retraction an example of “nuance,” an appeal to a “mitigating doctrine.” I call it having a pocketful of nontextual interpretive principles to draw on whenever textual originalism produces dumb results, such as barring ambulances on rescue missions from parks because the dictionary says an ambulance is a vehicle.
Garner says that “in citing examples, we were much more interested in the textual problems posed than in the solutions that courts provided.” But invariably they declare strong agreement or strong disagreement with the decision, and defend their opinion with a cropped version of the court’s reasoning. In the case of a person charged with shooting “into an occupied structure,” the book says “the question was whether, in ordinary English, into denotes the movement from outside to inside” (emphasis added). The answer is yes, and for Scalia and Garner this is another triumph for textualism—“McCoy was properly held not to have fired his gun ‘into’ the restaurant (since he was already inside), so his conviction was overturned.” My review points out that the court had found the entire statutory prohibition in which the “into” phrase was embedded—“discharges a firearm from any location into any occupied structure”—to be ambiguous, and so the “question” was not only what “into” meant but also whether “any location” could include a location within the occupied structure itself. Garner says the court didn’t call the entire expression ambiguous—but then he quotes the court as saying that the entire expression contained a “latent ambiguity.” In other words, the entire expression was ambiguous. Garner says that I said “the shooter ‘could be anywhere, and therefore inside.’” I didn’t say that. I said that this was the implication of the phrase “from any location,” which put it into conflict with the “into” phrase and thus made the statute ambiguous.
He says I cite only six examples of cases that the book misrepresents. True, but I had space limitations. So here’s a seventh, and I will be glad to furnish others on demand. The authors summarize a well-known opinion by Holmes (McBoyle v. United States) tersely: “’automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails’”—held not to apply to an airplane.” They use this to illustrate the statutory principle called eiusdem generis, which is Latin for “of the same kind” and means that in a list of specifics that ends with a general term (for example, “cats, dogs, and other animals”) the general term should be interpreted to be similar to the listed terms (so “animals” would not include human beings). The statute under which McBoyle was convicted criminalized the transportation in interstate commerce of a “motor vehicle” known to have been stolen. Scalia and Garner do not mention “motor vehicle,” but consider only whether an airplane (the stolen property that McBoyle had transported across state lines) is the same kind of thing as an automobile, an automobile truck, etc. For Holmes the question was whether an airplane is a “motor vehicle,” and while he alluded to without naming the principle of eiusdem generis, his principal ground for reversing McBoyle’s conviction was unrelated to that principle; it was that in ordinary speech an airplane is not a motor vehicle and that a conviction for a poorly defined crime should not be allowed. He also mentioned legislative history (anathema to Scalia and Garner) in support of his interpretation. All this Scalia and Garner ignore.
Speaking of legislative history, Garner says that I “prey on the unknowledgeable” when I say that Justice Scalia was doing “legislative history” in his opinion that holds that the Second Amendment creates a right to own guns for personal self-defense (District of Columbia v. Heller). Garner defines legislative history more narrowly than I would, to mean only “drafting history”—but Scalia did discuss the amendment’s drafting history in his opinion and claimed that it supported his interpretation of the amendment.
Garner quotes the literary critic Stanley Fish as praising his book. Fish did praise it—in a review in which he also said that the book’s “thesis that textualism is the one mode of legal interpretation that avoids subjectivity and the intrusion into the judicial realm of naked political preferences” is wrong.
40 comments
Gee, I wonder what the textualist explanation is for Bush v Gore, particularly for stopping the count in Florida and preventing the state from applying any method of counting votes that the Supreme Court would itself sanction. I'll have to reread the Constitution with that in mind. Or, I can recall that Scalia is a charlatan -- with, as Posner says, a big bag of non-textualist tricks with which to avoid an textualist outcome he doesn't like -- and save myself some time.
- roidubouloi
September 10, 2012 at 12:35am
Posner and Garner are talking past each other because, while Posner is making a secular case, Garner (and Scalia) is making a theological one. Anybody who has taken a college-level course on the New Testament will recognize the Scalia/Garner method; they even use a theological term, canon, to give their interpretation of text an aura of infallibility. Those who believe our constitution, like the Bible, is divine and, therefore, inerrant, must engage in interpretive gymnastics or risk having the entire facade come tumbling down. Consistency has no place for true believers.
- rayward
September 10, 2012 at 7:41am
Not only that Roi - but a "textualist" explanation that can also support why Bush V Gore needed explicit language to prevent its use as precedent (wonder why) also seems to curiously absent here. If everything is drawn from a "textual" interpretation, surely the argument that was put forth that there "wasn't time" to craft the language to provide guidance on how to use the decision as precedent wouldn't be needed? I mean it's all already in the text no?
- Nari224
September 10, 2012 at 10:34am
I found the following defense of Justices's Scalia and his own views by Attorney Garner highly dubious: "In a series of blog posts for National Review Online, Edward Whelan has done a masterly job of demonstrating why the six examples that Judge Posner assails—examples of Scalia’s and my research and case explanations—are entirely correct." Appealing to blog posts (there must be a logical fallacy by that name or there ought to be) to show that one is absolutely right is defensiveness rather than a real defense of one's views. Moreover the claim to be "entirely correct" is also suspect. Who was it that said that "to err human?" Modesty is certainly not one of Mr. Garner's valued qualities.
- arnon1
September 10, 2012 at 10:39am
Good point, nari, but I think you are overlooking the Wasn't Time Clause of the Constitution. As I pointed out in the previous thread on Scalia, there is no reason why a purportedly "textual" opinion needs to say more than, "This is the outcome because that's what the text says." If it goes on at length, as Scalia certainly does, it is pretty obvious that even the soi-disant super-textualist doesn't believe his own bullshit -- the text plainly does not say what he wants it to say or he wouldn't have to keep talking about why it says what he wants it to say. The whole thing, Scalia and his textualism, is objectively ridiculous, merely a way for him to claim special authority for his opinions without any basis for doing so that can pass a laugh test. Indeed, his "jurisprudence" is so clearly opportunistic in pursuit of his favored ideological outcomes that his opinions should be regarded as worthless. They are not jurisprudence at all.
- roidubouloi
September 10, 2012 at 10:52am
As someone who has some sympathy with the arguments for textualism I found Garner's response unsatisfying and querulous. It's also unhelpful for non lawyers, and lawyers too for that matter, in being so focused on Posner's alleged discrete case inaccuracies. I would have preferred rather answers to the critiques Posner makes of textualism. For example this large one right out of Posner's hopper: how does a "textualist originalist" hold flag burning involves speech, as Scalia did.
- basman
September 10, 2012 at 12:57pm
P.S. Posner's is more than an attack on textualism. It's an argument against the telling significance of legal reasoning in hard cases. It's an affirmation of, I think, legal realism in those cases.
- basman
September 10, 2012 at 1:03pm
Roi I feel that Bush v. Gore cannot be evaluated under any doctrine of constitutional interpretation. As I have contended before, it was not a legal opinion. A legal opinion can be cited as precedent. A statement of law which need not be followed or explained if it conflicts with subseqent statements of law is a legislative act. Simply put, the Supreme Court usurped powers attributable only to the legislature in rendering the decision in Bush v. Gore.
- Nusholtz
September 10, 2012 at 4:07pm
Nusholtz there's a written public debate going back a number of years between Dershowitz and Posner on this case with Dershowitz arguing in effect what you just noted and that it marks an indefensible, execrable SCOTUS low and Posner defending th decision as a reasonablly managed, practical outcome for systemic political reasons, partisanship having nothing to do with it.
- basman
September 10, 2012 at 4:48pm
Tee hee ... as I was reading this, er, reply, for some reason I thought of young Jamie Kirchik. I think it was when I hit "self-evidently farcical." I love that word - "self-evident" - so confident, so assertive. You did not find it farcical? You are self-evidently deficient! And Posner did not rise up to the bait to challenge the criticism of his own work, but rather analysed the Scalia book on its own merits. Shocking. Disclosure: I loath law and economics, the school of "thought" promoted by Posner that reduced the entirety of the law to a search for economic rationality. Posner's reductive approach to the law is no better than Marx or, for that matter, the legion of Critical Legal Studies writers and academics who polluted law schools in the 80s. But Posner's critique of Scalia's version of "textualism" was a masterpiece. All legal analysis is an appeal to authority; textualism is the legal charlatan's attempt to hide political choices in the garb of yellowed and dusty dictionaries. The snide and defensive tone of this article does nothing to rehabilitate textualism or to persuade me to read this book. Just this paragraph alone made me roll my eyes:
Puw wittow Scalia and Gawnew. Boo fracking boo. Seriously? So I looked up "inimical" in the Oxford Dictionary. This is what I got back: tending to obstruct or harm unfriendly; hostile I should have thought that something that is "hostile" is, by definition, threatening, and so the elipsis would be redundant. But perhaps there is a nuance I am missing. Then I looked up "promote". I got the following: raise (someone) to a higher position or rank So their book was hostile - if not threatening - to those who raise someone - nontextual means ... But wait, that did not make sense. Ah ... context. Silly me. It's another definition I should be looking for. Like "support or actively encourage (a cause, venture, etc.); further the progress of". Here's the thing. The choice of one definition or another is, of course, not based on the "text" - the text being "promote" in this instance - but rather what I, the reader, thinks of the specific text in its context. What if I am wrong about both and Garner really meant to use "promote" in its chemical sense - as a catalyst? ... Any way, a strict textualist analysis of this simple paragraph defeats me. I have to rely on my nontextualist brain - common sense - to figure out that Scalia and Garner think - they really seem to believe - that they have managed to slay "nontextualism"; that what the world of Liberal Fascist Law and Economic Professor-Judges has feared all along has now come to pass ... the new Gospel of Interpretation is out ... feel threatened you heathens! Except that among all the judges and lawyers and professors I know - all of them, to the last person, Chardonnay and Merlot drinkers of the Elite Set -none actually "promotes" the use of "nontextual" means in any of its lamentable definitions. We just think that a text, any text, cannot be understood through the prism of the Oxford Shorter Dictionary alone; that it is charlatanism to argue that any controlling text, no matter how clear and controlling, is absolutely clear and ambiguous in its meaning; that judges, in choosing one definition over another ("catalyst" or "support"?) exercise judgement that is value neutral. And so on. Not one person I know would be threatened by Scalia's pile of goo and not just because he is who he is, but because the argument is what it is; the only thing this book is inimical to is active neurons.- icarus-r
September 10, 2012 at 5:09pm
Basman Interesting, I will look for that. I just see the requirement that a legal opinion must follow or explain deviation from precedent, to be a precondition of a legal system. Common Law is a set of uniform rules applied to diverse factual situations. For me, judicial law can achieve nothing if rules have a one time application, regardless of the practical benefits. Legislatures are different.
- Nusholtz
September 10, 2012 at 6:10pm
Here, just keep following the links at the bottom of the page:http://www.slate.com/articles/news_and_politics/dialogues/features/2001/the_supreme_court_and_the_2000_election/_2.html
- basman
September 10, 2012 at 7:28pm
Try again http://www.slate.com/articles/news_and_politics/dialogues/features/2001/the_supreme_court_and_the_2000_election/_2.html
- basman
September 10, 2012 at 7:29pm
Icarus and roid, I think you both misunderstand what textualism is supposed to be, and I don't think you're giving it its due. The main mistake I hear from both of you is that you suppose that textualism denies the possibility of ambiguity. That's not true. Textualism is a method to *resolve* ambiguity. If there's no ambiguity, then the case doesn't reach an appellate court, and no "-ism" is necessary to resolve it. Let's agree for the sake of argument that it's a lousy method to resolve ambiguity. Even so, you don't demonstrate that by putting forward a caricature unrecognizable to anyone who has read anything remotely serious about it, or by associating it with a comical rigidity or fallacies of reasoning that textualists themselves would say are not only ruled out by their method but are most convincingly exposed as comical or fallacious by their method. Put aside your antipathy toward Scalia and your association of textualism with political conservatives and activist conservative judges. It wasn't always thus. Look at Hugo Black, one of the Court's important liberals, and also an advocate for textualism. One of the great stories of American constitutional law, always worth bearing in mind, is that, when it comes to "loose construction," or whatever you want to call textualism's opposite, the shoe was once on the other foot. It was the political conservatives, hostile to progressive and New Deal legislation, who found within the due process clause a substantive protection of unwritten rights. Later it was political liberals who did that. Then, it was economic liberty. Later it was personal liberty. Then, the textualists were the liberals, like Black. Today, it's the other way around. Go figure. Today, we have fun in law school arguing about "why Lochner was wrong." (Some libertarians think it was right, but they're in the minority.) Lochner v. New York, a famous Supreme Court decision (forgive me if you know this), stands for the era when substantive due process protected a liberty to contract seen as antithetical to, say, minimum hours laws and other efforts to regulate the marketplace. That era ended when a Supreme Court justice (named Roberts, by the way) surprisingly changed his mind just around the time of FDR's infamous court-packing proposal -- the switch in time that saved nine. One of the easy answers to the question of why Lochner was wrong is that it wasn't textualist. I think that this answer would be the first to occur to someone unfamiliar with the stakes and the political battles and the history and not laboring under "motivated thinking." After all, there's no "liberty to contract" mentioned in the Constitution -- it's made up out of whole cloth, used to promote a political agenda! we would protest -- and "substantive due process" sounds like an oxymoron -- the due process clause, according to its plain meaning, would seem to guarantee merely a fair "process" according to law and not to place any restriction on the substance of the underlying law. Of course, the liberal law student who gives that commonsensical answer then has some explaining to do when the class gets to Griswold v. Connecticut (the contraception case), Roe v. Wade, and the right to privacy, also nowhere set forth in the text and also resting on that same doctrine of "substantive due process" we found so suspect before. I say all this to suggest that textualism is not some crazy, stupid notion, but rather a judicial philosophy that I think has a great deal of commonsense appeal. I bet that textualism probably most closely resembles the default mode of reasoning for the typical layman confronting a legal text, unschooled as he is in the mysterious jurisprudential arts by which Lochner was wrong and Roe was right. Anyway, back to those misconceptions: Textualists only use dictionaries, and pay no attention to context or the meaning of phrases. No. Let me give you a famous example: The law says that your sentence for a drug trafficking crime is dramatically increased if you "used a gun in the commission of the crime," or something like that. Defendant trades an unloaded gun for a large quantity of cocaine with the intent to sell the cocaine. Should his sentence be increased for "using a gun" in the commission of his drug trafficking crime? One judge says, "The dictionary says 'use' means blah blah, and bartering the gun fits within that definition of 'use,' ergo Defendant used the gun in the commission of the crime, and his sentence should be increased." Another judge says, "That's ridiculous. When we say 'use a gun,' especially in this context, we mean 'use it for its purpose,' i.e., as a weapon or protection or something like that. We don't mean 'use it as payment' or 'use it as a paperweight,' any more than when we say someone 'uses a cane,' we might mean 'uses a cane as a decoration for the hallway.'" I don't know about you, but I find that second judge far more convincing. I think he gives the statute a sensible gloss, whereas the first judge is too literal, too beholden to the dictionary, and even comes off as a bit silly. In that case, Smith v. U.S. -- http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/508/223.html -- the second judge, the commonsense one, was Scalia, and he was in the minority, joined by Stevens and Souter. The majority opinion, written by O'Connor and joined by Blackmun and others, took the asinine dictionary route you guys associate with textualism. But Scalia's dissent *was* textualist. Textualists look for the natural meaning of words and phrases in their context. This doesn't just mean looking words up in the dictionary -- recent ones for new laws, old ones for old laws, as Posner dismissively suggests. A textualist will also look at the context of the word or phrase, and reason about its possible meanings, as Scalia does with the "use a cane" analogy. He will also pay attention to the structure of the law and seek to harmonize its deployment of various words and phrases and concepts so that the law is read as internally coherent. If the law is old, he will seek out historical sources of information about the usage of relevant words and phrases in like contexts at the time of the drafting in order to determine what the text would have meant to the contemporaneous community. And, yes, he will resort to traditional, albeit admittedly non-textual rules called canons of construction which serve as a sort of list of tiebreakers, as in, err on the side of x. What he will decline to do is seek to determine the legislators' intent by studying the legislative history. He may look at legislative history, but only as one source of information about what words and phrases meant at the time, not as an authoritative declaration of intent. He will likewise eschew consideration of the purposes -- or "gist," or "spirit" -- of the law. He doesn't consider these things because the legislature didn't enact the intent of some of its members, nor did it enact its motivations or purposes. Rather, it enacted only the text it could agree on. He will similarly reject a consequentialist reading of the law that seeks to avoid what seems like an unanticipated outcome, if such an interpretation stretches the ordinary contemporaneous meaning of the text. He will also reject a method that interprets the law in light of what, in the judge's view, makes for a workable, efficient, fair, or just policy. He rejects that method because, for the textualist, such policy judgments are reserved exclusively for the political branches (except when it comes to common law judges developing the common law). You can disagree with this method. I do, as I talked about in the other thread. But it's not absurd on its face. It's not obvious "charlatanism." Contra roid, it leaves judges with plenty to write about and think about, and leaves room for reasoning and inference and judgment and all that sort of law talk that filled up pages -- on both sides -- in the "use a gun" case. If you don't like textualism, and you want to be convincing to persuadable people, then I think you have to give up on the caricatures, and focus on the ways in which the actual method, a good-faith version of it, is unworkable or undesirable or whatever.
- JakeH
September 11, 2012 at 2:44am
Jake: Let's look at Hugo Black. (Not too deeply, that KKK membership might sting.) "No law means no law", he said; but "fuck the draft" on your t-shirt or burning your draft card is not "speech" he said. On the basis of strict textualism. He is wrong on both counts. "No law" cannot mean "no criminal sanctions against death threats", which are, manifestly, "speech"; "abridging free speech" and stopping people from maliciously screaming "fire" in a crowded theatre are different things; burning a draft card or the flag is demonstrably an expression of an idea that is meant to convey the same message as "speech" and it makes no sense, other than strictly textual, to deny protection to it. The problem with Black's approach was precisely that he missed the "gist" of what the First Amendment was about, and the story of how laws are drafted and constitutions assented to. Because, as much as we like to believe so, the legislative process is not perfect. Words get in there that do not belong there; structures are not always intended; outcomes not always foreseen; and not every problem that arises is anticipated by the drafters. This is what Roid was saying about the influence of the Common Law on the drafters of the Constitution, and on any legislative drafter. They know that you can leave things out, because you can expect judges to actually pay attention to what you really intended, and protect that. Black missed the point entirely on that score when he insistent no law meant no law and speech meant oral expression. I don't know if you have ever drafted legislation. I have been fortunate to have participated in the drafting of treaties, rules of procedure and legislative provisions. We are careful, of course, in the drafting or the negotiating room. But we also know there are holes, some intended and some unintended. In the negotiating room, every time an issue came up about whether a particular provision should be clarified, given more precision or limited in some way, the first question we asked ourselves was "how is a judge going to interpret and apply this?" We realised that putting in too much detail as "textual guidance" to a judge was sometimes redundant, sometimes dangerous, and not at all always helpful. This is because we could not anticipate everything - and so we had to, at all times, trust a judge to understand not only what we were drafting, but why we were drafting it. And yes, on more than one occasion, we had to reassure ourselves that a judge, properly functioning, would not allow an interpretation of a provision that would give rise to an unfair result. The things is, it is not that we expected judges to be legislating. We did not want activist judges. We were not looking for extrajudicial considerations to colour the interpretation of the provisions we were painstakingly negotiating. We did, however, know a thing or two about the judicial process - the real one. It is deeply personal and determined by conclusions. It is a major mistake to think that judges get to the conclusion applying canons of construction. Rather, they use canons of constructions to justify the choices they have arrived at already. Textualism is charlatanism because it denies the judicial process, and pretends - as you have set out in beautiful prose - that all they are doing is to reveal the inner meaning of the text. Poppycock. Judges who talk about the "gist" or the purpose of a law, who go into the legislative history, who talk about fairness, are no less wedded to the text than textualists; they are just more open about what influences their thinking.
- icarus-r
September 11, 2012 at 9:49am
The short answer to that, Jake, is that textualism in theory is a joke and in practice a fraud. It is incapable of being applied according to its terms, which is why it must constantly be “rescued” by some non-textualist intervention, and as applied by such as Scalia is grossly outcome-driven. His opinions don’t bear any relationship to text at all. They are more often than not obviously absurd contrivances to justify an outcome that he wants for ideological and political reasons. Like the rest of the right-wing charlatans, he is engaged in the grossest form of the very behavior he purports to criticize. You also say: “I bet that textualism probably most closely resembles the default mode of reasoning for the typical layman confronting a legal text, unschooled as he is in the mysterious jurisprudential arts by which Lochner was wrong and Roe was right.” I am willing to assume you are correct. But is this supposed to be a defense of textualism? That it is the conclusion that a completely untutored naïf would reach? Do you think Scalia’s opinions reach, by application of his pseudo-method, the conclusions of the untutored naïf ? That is just for context. As to your argument: You say, “Textualists look for the natural meaning of words and phrases . . . .” What on earth is “natural meaning,” please? You assume the (Scalia) conclusion, that there exists somewhere, in a Platonic world, an objectively natural meaning to words that we need only discover by some purported lexical archaeology. This is nonsense, and indeed the very reason why textualism is incapable of any sensible or consistent application. Fundamentally, textualism refers to something that does not exist, never has, never will. Ergo, whatever they purport to be doing, textualists have to be doing something else. And the fact that, intentionally or unintentionally, they conceal, perhaps even from themselves, what they are about is the reason why their opinions are, as Posner says, “incoherent.” The ensemble makes no sense because the claimed underlying principle that is supposed to tie them together is completely chimerical, even childish in its understanding. Taking your essay seriously in detail, what is clear to me, and somewhat humorous, is that you too cannot even defend textualism without immediate and unconscious resort to non-textualist fixes. Why? Because words have no natural meaning; they have meaning to different people, including those who uttered them, who may be a collective with no single mind, and the multitude who may hear them. The meanings that each finds there will depend on a great many circumstances, not least their institutional situation and their education, or lack of it, regarding the interpretation of legal texts. Is it what the random man on the street hypothetically thinks? Some professional community? Lawyers? Doctors? Bureaucrats? A hypothetical “reasonable man?” The only thing that textualists rule out is the meaning that the words have to the people who wrote them and the people who voted for them. Peculiarly, that we must exclude. Why then do textualists supposedly permit consideration of the meaning of legislative history, not for the “original intent” of the drafters (and say, how come they adore the original intent of constitutional Framers but abhor the original intent of statutory drafters?), but to understand the “meaning?” But to whose meaning could the legislative history possibly be relevant other than to the drafters and legislators themselves? Do you think that your “typical layman” is reading up on his legislative history so that he can have the typical layman’s understanding of the law? Is the meaning of the words to the drafters, to whom the task was delegated by legislators, and the legislators themselves relevant or not? Which is it? And what if in fact no legislator who was not involved in the drafting process ever read so much as a word of the legislation? Do you suppose that generally speaking legislators read voluminous bills and attempt to parse them? Or, as in every other modern organization, is it not the case that tasks are delegated, first to committees and then to professionals working for the committees, and that the legislators rely, as a matter of faith, on the advice of the group to whom the task was delegated as to both the wisdom and purpose of the legislation? Could a modern legislature function otherwise? The other thing that textualists appear to exclude -- on this you and I appear to agree -- is consideration of the “purpose” of a law. This is oxymoronic. Law is not an aesthetic project. It is meant to be operative, to achieve concrete effects and outcomes in the world by encouraging or even compelling certain behavior, discouraging or precluding other behavior, and meting out consequences of both behavior and natural events and of combinations thereof. In short, its purpose is its meaning! (although we are then thrust again back to the question of “Whose purpose, that intended by the drafters or the meaning that some community of listeners might infer?”). If one insists on excluding consideration of the purpose to be served, there is no possibility of making sense out of any law. The textualist delusion is that there is some sort of mechanical process for the interpretation of words, using however many of the lexical and historical tools that you think textualists will allow, that can surface a meaning without regard to the intentions and purposes of any human beings who use words, either in fact – the authors of the words -- or as a hypothetical construct of what, “people who say such things in such and such a context would likely have as their purpose and intent.” Take your gun example, which you seem to find so compelling. The law imposes higher penalties for “using a gun” in the commission of the crime. But what is the purpose? Is it to prevent people from brandishing guns while committing a crime? Firing them while committing a crime? If the gun were brandished but not fired, was it “used?” If the criminal kept the gun in his pocket while committing the crime, was it “used?” Maybe not if he didn’t know it was in his pocket because someone else accidentally put it there and he never knew it was there, but maybe yes if he brought the gun to the crime intending to brandish or fire it “if necessary.” What if the gun is not capable of being fired and is brought only for intimidation? Does a textualist have any possible means of telling us whether the fired gun, the brandished gun, the hidden gun, the non-operating gun, or even the traded gun were “used?” I don’t think so. One has to consider the possible purposes of the law. The rather obvious one is that bringing weapons to the place where a crime will be committed dramatically increases the risk to public safety and to peace officers. The risk that a gun at a crime scene will be fired and someone injured or killed is high, regardless of exactly what the bearer of the gun intends. The risk that even a non-working gun will itself induce gunfire is high. Is that not a good reason to increase the penalties? And if that is indeed the reason for the law, then why is it any less applicable if the gun is brought to the scene and traded rather than used as a threat? Are there not a myriad of circumstances in which the gun intended for trade can produce a deadly outcome that would not otherwise occur? Alternatively, the purpose of the law could be to distinguish those drug criminals who pose the greatest threat to public safety from those who may damage themselves but do not pose an immediate threat to public safety. Hence, the incident of gun “use” becomes the basis for higher penalties, removing the more dangerous from the streets for a longer period of time. What would be wrong with that? Is that not a typical purpose of the criminal law? If that is the purpose, is there any good reason to distinguish the person who is able to get a gun and bring it to the crime to trade from a person who is able to get a gun and bring it to the crime to make a threat, or even for protection, while excluding the buyer who only brings money and an appetite? Now, perhaps Scalia can figure out some other purpose for this law, other than merely emitting an utterance that we can then interpret as if we were playing a card game or a word game. And maybe this other purpose would distinguish the cases of firing, brandishing, carrying, and trading in a sensible way. But that would have nothing to do with textualism. And if the purpose of the law is not word games, but to reduce the risk of lethal violence resulting from drug transactions, what sense does Scalia’s purportedly textualist reading make? None. If the meaning he infers frustrates the very purpose of the law, how can that meaning be “the meaning” of the law? If the legislative history states clearly that the purpose of the law is to reduce the risk of lethal violence resulting from commission of a drug crime, what then? But even if it does not, is not the entire history of Anglo/American jurisprudence that in order to apply law judges must do so conscious of the purpose that they infer is that to be served? Has there ever been a time in Anglo/American legal history when textualism was actually employed other than as a rhetorical device for lazily either discrediting or claiming authority? I don’t believe so. One might say, as in the restaurant/gun case, that this criminal law does not adequately announce its intention to the common person, because that common person, like Scalia, might think that if he didn’t intend to threaten or injure anyone with the gun it wasn’t “used” (intention rears its ugly head again, as it always does in the criminal law). But, even though we have this requirement that criminal laws must announce their intention with sufficient clarity (the reasons therefor being a whole other subject), we do not really think that criminals before going out to commit a crime read the law so that they can understand exactly the dimensions of what they are doing. In this case, a court that bothered to think about the question would surely conclude that the law gives sufficient warning not to bring a gun to a drug crime. Finally, a word about Lochner and Roe. The arguments about textualism are just as moronic in that context. Lochner is not wrong because it is not textual. It is wrong because it is grounded in an archaic understanding of commerce and economics that might be understandable in the 18th or 19th centuries but is not any longer. It would be like grounding decisions relating to medicine in leeches and bloodletting. Lochner, as a matter of fact given a modern, sophisticated understanding of commerce, trade, and economics, is simply radically incommensurable with the purposes of the Commerce Clause. That’s all you need to know. The impulse that gave rise to Lochner and also finds its expression in Roe is that “life, liberty, and property” are not meaningless terms and that the purpose of the Fifth Amendment, as understood contemporaneously with its adoption, was not merely to say that one can be deprived of anything by the state so long as there is a regular process for doing so. There can be deprivation due to some specific act of the person, in which case “due process” means an acceptable evidentiary process for singling out the particular person for loss. There can also be a general deprivation, applicable to all. “No one can smoke cannabis.” “Everyone must eat at least an ounce of broccoli once a day.” Although the term “substantive due process” is inartful, to say the least, I believe it refers to an understanding of “liberty” as not merely requiring an evidentiary process but as one in which we are conceived as free to do what we want unless the state has a legitimate public interest in interfering. If not, then we are to be left alone. I think that this notion finds a great deal of support in the intellectual history of the Bill of Rights, a history that did not begin with the date of its adoption. The thing that seems to be perpetually unbearable for conservatives is that our understanding of what is and is not a legitimate public interest necessarily changes with technology, conceived broadly as all the things we do, not just as machines, with social structure, with means of communication and transportation, and with our understanding of the psychology of human beings. Even if he were not a fraud and a charlatan and we took him and his supposed textualism seriously, Scalia wants us to live in the modern world as if we are 18th century people. That is not possible, and would raise the question why any modern person ought to consider himself bound by words written hundreds of years ago in the absence, let us say, of a decennial re-adoption of those words. A Constitution so rigidly applied would lead to the break-down of society, as it would have if the Supreme Court had continued to frustrate the New Deal, and could never serve as a foundation for a stable, legal order. If the Constitution is to have any utility, we are constrained to interpret it and reinterpret it in light of the realities of the modern world. And there is every good reason to believe that this is exactly what the Framers intended. They were much smarter, insightful, and foresighted than a pedantic boob like Antonin Scalia. In that light, the simple explanation of Roe is that “liberty” means, most profoundly, the general right to dispose of one’s physical body, to be interfered with only if there is a legitimate public interest. The holding is that there is no sufficient public purpose that justifies interfering with a woman’s inherent right to make this most intimate decisions regarding her own person. I have no trouble finding that meaning in the Constitutional idea of “liberty,” granting that it depends on a modern conception of biology that has no place for a “soul” (at least as an object of state interest) and a legal understanding that a fetus is not a “person” within the meaning of the Constitution. The conception of personal liberty reflected in Roe surely is based in a modern understanding of human psychology and the nature of human beings, and might not be an acceptable reading to an 18th century mind. So what? Time and the evolution of society rendered Lochner obsolete. Time and the birth of modern psychology and of self-consciously and deliberately psychological human beings made Roe (and Lawrence v. Texas) necessary. We do not live in the 18th century, and certainly not in the cartoon world that exists in the imagination of Antonin Scalia. The best face that can be put on textualism is that, for no particular reason I personally can think of, it insists that the only permissible meaning of law is that which the reader (but then again, which reader?, as that too is a judicial choice, however suppressed) would most likely infer if he wilfully refuses completely not only to investigate but even to think about what the writer intended, as if the words were written by a machine. That is both senseless and impossible. If one has no concept of what people intend when they say things, words have no meaning at all.
- roidubouloi
September 11, 2012 at 11:00am
By the way, I am quite convinced that Scalia wields his textualism in cases such as the gun case, where the outcome, one way or the other, does not matter very much, or in the flag-burning case, where he noisily and constantly declares how repelled he is by the outcome to which his principles drive him, in order to burnish his reputation as one committed to a jurisprudential principle no matter it takes him. Then, in cases where he really cares ideologically about the outcome, he claims to be guided by his textualist commitment even though it is perfectly apparent that the outcome he reaches cannot possibly be squared with any variation of textualism. In the hands of Scalia, textualsim is purely a con.
- roidubouloi
September 11, 2012 at 11:07am
One other counter-example before I try to do some real work. Assume that the recent 2nd Amendment decisions are correct and that there is an individual right to bear arms. Does this include the right to have a Stinger missile? There can be no question that Stinger missiles are "arms." On the other hand, they did not exist in the 18th century. Does the protected right pertain only to the sort of arms that existed when the 2nd Amendment was adopted, what the contemporaneous community would have thought of when it heard the word "arms?" Too narrow says Scalia. We have to allow for changing technology. 18th century people understood that arms change, we go from swords to firearms. But then what is the stopping point? How do we embrace going from muskets to handguns or even, shame on us, machine pistols but not allow everyone their own Singer missile or even their own nukes? Fairly obviously, one cannot figure out the outcome without thinking about the purposes of the 2nd Amendment and the reality that there are conflicting interests and rights embraced by the Constitution. You may have, for some purpose, a right to "bear arms," but the scope of the right cannot be understood without some inferred purpose to the clause. Further, we have a right to public safety. The scope of the right cannot be set without consideration of the competing public interests. Public interests, private liberty interests. The boundaries must be drawn and the institutionalized preference is for democratic decision unless the Supreme Court decides that there is insufficient public purpose served relative to the strength of the private claim. And if there is sufficient public purpose, then the private right yields, every time, no matter which provision of the Constitution is being interpreted. That makes it pretty easy to reconcile Lochner and Roe. It is only difficult for textualists to do so because they apply a nonsensical principle.
- roidubouloi
September 11, 2012 at 12:06pm
I would make one additional comment. Jake, in his essay, set out a far more compelling case for "textualism" than Garner did in his sneering and snivelling reply. That tells you something.
- icarus-r
September 11, 2012 at 1:33pm
I also want to return to one point that I made a number of times in the two related threads and icarus commented upon. While I do not think so-called textualism can be defended on any basis, it would certainly be possible to have a system in which judges did not correct errors or oversights and defaulted to "no law" in any case where it is concluded that the situation was not reasonably foreseeable at the time of adoption. This is so even though the result of concluding "no law" would likely be somewhat chaotic. If, for example, Stinger missiles could not have been anticipated at the time of the Constitution, should we conclude that the Federal government has no authority to keep them out of private hands? On the other hand, I cannot see any reason, in principle or otherwise, why we cannot have a system in which judges, themselves unelected but appointed by democratically elected officials, are charged with just these responsibilities, something that icarus reports naturally assuming to be the case when he was engaged in legislative drafting. Given that either such system is at least possible (unlike textualism which is impossible), which system do we have? I don't think there can be any serious question that the system we have, and have always had as it is rooted in common law practice long antedating the Constitution, is the latter. We adopt legislation in the expectation that judges will play an active role in seeing that the purpose of the legislation is sensibly, coherently, justly, and equitably implemented. Scalia's purported system is therefore something purely of his own invention, quite apart from its textualist pretensions. Are we really to abandon several hundred years of Anglo/American jurisprudential practice because one unelected judge doesn't like the actual American system of law and imagines himself smarter than the Framers and a whole series of brilliant and illustrious American jurists and scholars who preceded him, he being neither brilliant nor illustrious nor a serious scholar except in his own imagination? The guy isn't exactly Marshall or Holmes or Cardozo or Brandeis or Hand, now, is he?
- roidubouloi
September 11, 2012 at 2:33pm
Jake, yours of 09/11/2012 - 2:44am EDT is a great comment. I'm going to show it with all due attribution to a few guys I correspond with online. Really impressive. And as icarus-r suggests would that Garner had written a response along your lines. That's what was needed, as I noted before, not a bunch of defensive niggling about supposed inaccuraries in the disposition of a few case examples.
- basman
September 11, 2012 at 6:38pm
P.S. And that you whipped it off while shaving this morning--we have cameras everywhere-- is impressive too.
- basman
September 11, 2012 at 6:40pm
Pardon me for not being quite as impressed. Well written indeed, and far better than Garner, but, other than the insistence that textualism is being unfairly caricatured, it makes no coherent defense of textualism. Not really Jake's fault though. Textualism is fundamentally incoherent. It cannot be defended without constantly slipping off into something that is not textualism.
- roidubouloi
September 11, 2012 at 7:01pm
The notion of interpreting a legal text without regard to the understanding of the people who wrote it and/or voted upon it or their intended purposes is indeed crazy and stupid. If "common sense" were sufficient for understanding law, we would not need law schools to train lawyers. And I think we do. How about common sense medical practice (vitamin therapy)? Common sense climatology (climate change denial)? Common sense genetics (creationism)? Common sense economics (supply side)? Must we "give them their due" or are they properly deserving of ridicule?
- roidubouloi
September 11, 2012 at 7:06pm
Well, I have to agree with Roid. Based on Jalke's comments on TNR over the past couple of years, I think he is a good guy and a very, very smart guy. But in defending "textualism" as being a serious methodology, even though he disagrees with it, I think Jake is simply misconstruing textualism as being something other than textualism. Jake, I think maybe you regard any methodology as textualism that starts with the text and seeks to interpret the text. Non-textualism, I think, in your view, based on your posts from a couple of years ago, would mean disregarding the text altogether, and simply deciding constitutional cases in accordance with a judge's moral compass. In any case, if textualism is what you describe it to be, what is non-textualism? Dhurtado
- NR143296
September 11, 2012 at 10:13pm
Sorry, "Jake's" comments
- NR143296
September 11, 2012 at 10:14pm
I didn't mean to defend textualism, but merely to describe it more fairly, suggest why it's at least plausibly appealing, and dispel some of the glib contentions made about it here. I'm fine with ridicule, so long as it's ridicule of the actual thing, and not a straw man. I actually don't think "common sense" is such a bad way to "understand the law." The law isn't so fancy. It ain't rocket science, or any kind of science, which is why the analogies roid makes to medicine, climatology, and genetics don't work. Even economics, though merely a quasi-science, is more technical than law, which, at its most highfalutin, basically amounts to amateur philosophy. (There are professional philosophers of law, like Ronald Dworkin, who is a great thinker, but who I bet few in the *legal* profession have actually read and understood.) And, even though law touches on all manner of technical policy questions, typical law students learn very little about the substance of those myriad issues. Maybe they should, but they don't usually. Even Posner, who invented law and economics, concludes in his book on legal pragmatism that a judge should adhere to a judicial philosophy that says merely, "do the reasonable thing, all things considered." (Maybe not an exact quote.) As you can probably tell, he's a skeptic of judicial philosophy, including texualism, and, I suppose in the end, law and economics too. His hero is Holmes, probably in part because, like Posner, he was appealingly unsentimental and ornery and a good writer. I think that textualism has "commonsense" appeal in cases where it seems that a legal decision is straining against the plain meaning of the authoritative words. I think it has commonsense appeal where it seems that a judge is aggressively replacing his own political preference with that of the law he is charged with interpreting, a crime which textualists themselves have committed and are rightly called on for that reason. I think it has commonsense appeal when it leads us to see that, at the relevant time, a word or phrase meant x, and not what we take it to mean now. For example, Akhil Amar, the Yale con law scholar, and a liberal defender of textualism, has argued that "commerce" at the time meant something like "activity," as opposed to "business activity." I don't know if he's right about that, but we'd sure want to know, wouldn't we? These are good facets of textualism. Posner argues that judges aren't historians. True. The problem is, they're not *anything*. They're not scientists, but they have to pass judgment on cases involving science. They're not economists, but they have to pass judgment on cases involving economics. They're not psychologists, but they have to pass judgment on people's psychological state. The solution to the problem of judges' lack of historical knowledge or training is the same solution to the pervasive problem that they hardly ever know what they're talking about about anything -- experts. That's doable and it's done all the time. Historians publish their findings, and judges can look them up, as Posner did when he wrote his original article. So, textualism has some commonsense appeal. But I also think that it's common sense to consider the purpose, gist, spirit, what the law is getting at, the issues it seeks to address, the paradigmatic situation that motivated its passage, etc.; that the legislative history can be useful, if not conclusive, in doing that; that the Constitution is, by its nature, meant to be durable, workable, and just over the long haul and fairly invites consideration of evolving standards for how to apply its vague principles; that enshrining undesirable, unanticipated consequences into law isn't being true to the drafters and needlessly foists bad rules on the public; that judges should be mindful of the real-world stakes of their decisions instead of resorting to pointless pedantry; and that judges should always try to be fair and just, which is hard to argue with. In other words, they should do "the reasonable thing, all things considered." They should not, contra textualism, rule out whole classes of serviceable and traditionally admissible tools for coming up with reasoned opinions under the fiction that allowing those methods is an invitation to a chaotic subjectivity that only textualists can be relied upon to avoid. They can't be, as Heller and other cases demonstrate. The Second Amendment, after all, is unique among the rights set forth in the Constitution in that it says right there in the very same sentence what the point of the right is, what it's about, which is the archaic purpose of preventing the federal government from disarming state militias. I'm not quite sure how I would resolve Lochner v. Roe, though I'm tempted to buy substantive due process on the theory that the distinction between substance and process is illusory; that a manifestly unjust law, if not literally no law at all, "could not be dignified with the name of due process of law" (to quote Dred Scott, which, wrong about everything else, basically assumes the validity of what was later called substantive due process); that it's an old and well-established concept; that natural law, which substantive due process resembles, was a founding-era notion that basically justified the American Revolution, and thus, the Constitution itself; that, hey, the ninth amendment exists, by the way; that the pre-Girswold historical lack of engagement with issues like contraception or abortion on liberty grounds is a function of sexism, religion, and outdated social norms that prevented public discussion of such things and to which we're not beholden; and that roid's preference for personal liberty over economic libertarianism resembles the Constitution's preference. As Holmes famously said in his great Lochner dissent, "the 14th Amendment does not enact Mr. Herbert Spencer's Social Statics," a book that pushed social Darwinism. Nor does it enact Ms. Ayn Rand's Atlas Shrugged nor Austrian- or Chicago-school economics. Far more plausibly, it *does* enact, "It's my body." I don't think anyone can seriously dispute, be they pro-life or pro-choice, that forcing a woman to carry a pregnancy to term is an acute governmental imposition on the woman's liberty. I appreciate roid's discussion of the "use a gun" case. Those are all plausible arguments of the sort that good lawyers would make. (See, it's not so hard.) I'm still persuaded, though, that "use a gun," without more, means what we would all mean by that phrase if we were to use it in everyday conversation -- not "use it as payment" or "use it as a paperweight" -- and I don't think that the statute's purpose or any other consideration commands that we stretch the meaning of that phrase to an eye-rolling degree in order to stock our federal prisons with yet one more non-violent drug offender.
- JakeH
September 13, 2012 at 12:12am
Thanks, jake. A fine summary and conclusion (and how do you manage to do it without typos, grammatical errors, and such?). Specifically regarding the gun example, my purpose was not to show that the "commonsense" meaning of "use a gun" is inadmissible. I personally think that that decision could have gone either way without doing any harm to legal principles or justice. Rather, my point was to show that: (1) even the commonsense meaning of a common phrase does not allow you to escape interpretive difficulties and (2) textualism does not in fact offer any useful method for resolving those difficulties. There are potentially a multitude of questions about the application of that particular phrase to particular sets of facts even though we all have access to the meaning of "use a gun." They can be resolved while attempting to think about the purposes to be served (and disserved) by particular readings, as Anglo/American jurisprudence has done for centuries, or by pretending to ignore such considerations, as textualists claim to be doing.
- roidubouloi
September 13, 2012 at 8:00am
Jake, I told you I would pass your previous comment that I said I liked on to a few guys. One of them waa impressed with your comment but wondered to me, given it, what your beef with textualism is. Then along came your latter comment, which I passed on to him as well, which elicited the following comment, which I thought might interest you. He's a non lawyer, but a very thoughtful guy with a a range of views on a a variety of issues: .... Ah, too bad -- I thought he was good up to here. "Common sense" is fine in most things, including law, but as a guide for judges it seems to me to say either too much or not enough. "Not enough" because it doesn't limit the application sufficiently -- we want common sense as applied to the legal texts pertinent to the case before them, which is supposedly their real area of expertise. When the guy says that judges aren't anything, he's wrong -- they're clearly legal experts, or should be. But they're just as clearly not experts in economics, sociology, science, politics, etc. and in these areas their "common sense" is no better than than yours or mine or a cab driver's or any other citizen's -- and calling in other so-called "experts" isn't going to be able to help them any more than it can help any of the rest of us. The point is that this is precisely why we have a democracy rather than a rule by judges or "experts" or some combination of the two. (Of course judges, like any of us, have their opinions about all sorts of extra-legal matters, and they're all able to find experts that can support their opinions, just as we all can do, but when they attempt to impose those opinions through their judgements, then this is judicial overreach and should be seen as such.) And this I just can't let pass without comment: "I don't think anyone can seriously dispute, be they pro-life or pro-choice, that forcing a woman to carry a pregnancy to term is an acute governmental imposition on the woman's liberty." Of course it's an imposition, but we all recognize that laws impose on some people's liberty in order to protect others -- in this case, the other person, as seen by pro-life people, is the fetus. As I've said before, I'm pro-choice, but suddenly finding "It's my body" enacted in the Constitution, and then proceeding to find, on that or similar bases, a right to an abortion in disregard of historical claims to a right to life of the unborn, still constitutes one of the worst examples of just that judicial overreach...
- basman
September 14, 2012 at 12:28pm
No, it isn't judicial overreach, any more than the right to use contraceptives, the right to employ or decline medical care, or the right to have consensual sex or refrain from having it in the manner you like. "It's my body" is in the Constitution, in 18th century language, "liberty." It did not just mean free to walk around and chew gum. Once the principle of the right to dispose of one's own person is understood, it is not at all difficult to grasp that the state has to have a compelling interest in order to interfere. Anti-abortion rights people (who are only occasionally anything that might fairly be described as pro-life) think an embryo is a person or a work of divine origin of equal theological status. That is a purely religious point of view, one I do not share and that many conscientious people do not share. The essence of Roe v Wade is not the "right to abortion," although that is the common expression, but the holding that an embryo, or a fetus, is not a person within the meaning of the Constitution and the law. Hence, the embryo or fetus cannot be made the basis for stae interference with the right of a woman to control of her own body, what is in it, what goes into it, and what is removed from it. The weasel words used by Basman's friend are "in order to protect others." This assumes the conclusion, that the embryo or fetus is a person. Not in legal contemplation it isn't. Those whose religion so instructs are free to believe whatever they want in that regard and act accordingly with respect to their own persons. They are not free to import their religious understanding into law that imposes state control over another person's body. That person is an "other" whom the state must protect, even at the cost of offending someone else's religious sensibilities. This, of course, is what you get when you have non-experts expounding the law from their "common-sense" point of view. There are only two fields that I can think of where many people seem to think that no expert knowledge or education are necessary: law and economics. I beg to differ.
- roidubouloi
September 15, 2012 at 1:59pm
It also seems to escape the notice of self-declared common-sense that, in our democracy, vast numbers of unelected people, who outnumber legislators probably by a factor of 100,000 to 1, make myriad decisions that affect us, within a defined sphere and a set of rules. Somehow, the notion that judges should be amongst the 100,000, although they are for the most part appointed, seems to these folks to be a major threat to democracy. I don't see that at all. There is an accepted practice and methodology to law, just not as practiced by Antonin Scalia. There are also typically a couple of levels of review, which is not the case with many decisions that area made by officials that affect us. If judge's are misapplying statute law, there is the corrective of new legislation. There is a great deal wrong with the judicial system. But the fact that judges are not democratically elected is not among them. When it comes to construing the Constitution, there is a need for greater deference to legislation because it is extremely difficult to change the outcome of a Supreme Court decision. But the deference is not absolute, particularly when the state chooses to impose in a discriminatory manner on a small class of persons. We rely in part on the general applicability of laws, that if they effect everyone in the community, or nearly so, the prudential judgments of legislatures can be given effect because they are subject to democratic oversight. If they do not reflect the will of the people to restrict themselves for the collective good, then they will be voted out. In the case of prohibition of abortion, there is not a general prohibition against medical procedures that people believe are beneficial to them, their health and well-being. Only women, and only pregnant women, peculiarly, are denied a medical procedure. Roe makes clear that the state can impose the same sorts of restrictions and regulations, designed to ensure public health and safety of patients, that it imposes generally. But it cannot disfavor in a discriminatory manner the interest of the woman in her own health and well-being -- unless, that is, there exists another person to be protected due to the peculiar nature of pregnancy. There does not exist such an other person. The conclusion then follows inevitably -- if, that is, one understands law.
- roidubouloi
September 15, 2012 at 2:17pm
Just when I thought I was out of the woods! Thanks basman for the compliments, and for forwarding my comments. I'll try to give a fuller response tomorrow. For now, I'll point out two things: First, I didn't say that judges should simply apply "common sense" and leave it at that. I said, rather, that it was commonsensical to use the methods of interpretation that textualists exclude, e.g., the evident purpose of the law. Does your correspondent disagree with that list of tools, or that one in particular? My legal education and experience, limited though it is, tells me that judges have a role to play in making statutes work in light of their aims -- playing clean-up when the abstract words of the statute, which the holy lawmakers never read as roid correctly points out, bump up against awkward or unanticipated applications in the real world. For judges to do that is not usurpation. It's their job! And, as icarus said, it's one that the drafters would want judges to perform. Many statutes even include a bit of language that says, "This act shall be liberally construed to effectuate its purposes." Isn't that a good rule of thumb to follow, even if the statute doesn't include that language? And, if we agree with that dare I say commonsensical notion, then are we still textualists? I don't think so, which is where I think textualism starts to run off the rails. Second, I didn't mean to say that recognition of the woman's strong liberty interest necessarily ends the discussion when it comes to Roe. I do think, however, that, so long as we accept substantive due process -- and I count myself as a somewhat ambivalent "leaner" rather than a vigorous partisan -- *and* if we agree with the idea that the protections afforded by vague constitutional concepts and principles (like "liberty") properly evolve over time in light of recognition of previously suppressed albeit persuasive moral considerations, and that we're not bound by the framers' cramped or prejudiced *applications* of those principles, which applications they didn't enact after all, then, yes, I think courts have a role to play in limiting government's legal interference with one's body. I'd go so far as to say that if "liberty" means anything, it means "it's my body." Whether the countervailing interest in protecting the life of the fetus is a strong enough reason to invade that unquestionably strong liberty interest is a question I didn't address. One might point out that fetuses don't have rights. We might also point out, on the other side, that morals legislation is not automatically off limits. To which the response would be, yeah, but it's suspect. The question of the fetus's or embryo's moral status is impossible to resolve. It's not *murder* -- not even pro-life people want to punish it as such, and it never has been punished as such. Still, it plausibly has *some* moral status. The question, then, is, in our democratic system that is also highly protective of individual liberty, who decides? Conservatives say, the state. Liberals say, the individual. Roe splits the baby, so to speak, and says, early in the pregnancy, the individiual; late, the state. I'm pretty comfortable with that. It's not the most satisfying answer in the world, but no answer would be.
- JakeH
September 16, 2012 at 12:06pm
p.s. I posted the above without having seen roid's comments yet, so maybe he offers some similar thoughts....
- JakeH
September 16, 2012 at 12:10pm
I wouldn't take issue with any of that, Jake. My reading of the Constitution, at least up until the 14th Amendment, is that it consists entirely, or almost entirely, of rules about "who decides?", whether it is to be the individual, a state government, the Federal government, particular parts of the Federal government, a jury, and so forth. The 14th Amendment is a departure from this as it imposes affirmative obligations of equity that cannot be satisfied by merely deciding who in the gets the last word. In such a system, the potential for conflicting claims as to who decides is inevitable, and, to my mind, the notion that the text by itself can resolve those claims ludicrous. For the most part, the way in which such matters are decided is by explicit consideration of the "interests" of the competing claimants, the government versus the individual, the executive branch versus the legislative branch, and so forth. This is as it should be, although excluded by textualism. Without thoughtful consideration of the interests at stake, both in the particular case and as they are affected systemically, decisions will be chaotic and nonsensical. Scalia serves particular interests. He just wants to hide the pea and suppress that knowledge and uses a fake theory of construction, textualism, with which to do that. When Roe is incorrectly characterized as a "Constitutional right to abortion," it becomes incredible. How can one read a "right to abortion" into the Constitution? You can't. But that isn't what the decision is about. It is a fairly classic balancing of the liberty interest of the individual -- in controlling her own body and availing herself of a procedure upon her body that she, for reasons sufficient to herself, regards as in her interest -- against some claimed interest of the state. The concrete problem that the court faced is that, unless you conceded personhood to an embryo, or some sort of sacred status, it is impossible to claim that the state has an interest in a cluster of cells that somehow outweighs the interest of the woman in not going through pregnancy, with all the negative consequences, including risk of death, entailed. At the other end of the spectrum, there would, I think, be collective horror at the notion that a fetus could be aborted at term in the discretion of the woman. We would not tolerate infanticide. Would we tolerate killing the same being a few minutes earlier because it had not begun the passage through the birth canal? And yet, the vast majority of people would indeed approve of killing that being if it were necessary to save the life of the mother, whereas we would never permit one person to be sacrificed to save the life of another. Not saved if only one of two could be rescued, but never deliberately killed. Faced with the two ends of the spectrum, the court, any court, has to figure out how to reconcile them. It resorted to a formulation that one finds throughout the common law: rights can be extinguished through the passage of time without action, the balance of equities can change over time if the party who initially is given the initiative fails to act. Thus, a woman who waits until the moment before birth to have an abortion has plainly not taken her interest in being free of the pregnancy to be of tremendous importance. Society has a maturing interest (no pun intended to be sure), and then a mature interest in protecting a being that is very close to entering the world as a person entitled to the full protection of the law. So, the interest on one side wanes, the interest on the other side waxes, allowing the court to conclude that, close to conception, the balance favors the autonomy, that is the liberty, of the woman. Close to birth, the balance favors the interest of the state in interfering with that autonomy. I don't find that unsatisfying at all. It seems to me to be a very sage solution to both the constitutional and practical questions, very much in the spirit of Anglo/American jurisprudence -- what I prefer to refer to as "the common law."
- roidubouloi
September 16, 2012 at 2:00pm
"cannot be satisfied merely by deciding who in the end gets the last word."
- roidubouloi
September 16, 2012 at 2:50pm
There is one more thing that I want to say about Roe. I think it was rightly decided. I also think that one can make arguments against the decision that would not be inconsistent with our legal and constitutional history. The questions: (1) Does "liberty" mean, "Your body is yours?", (2) Does the state need a compelling interest to restrict a constitutionally protected liberty (substantive due process)? (3) Is greater scrutiny appropriate where the law applies only to a relatively small class of persons?, are all subject to argument. I consider it inarguable that a fetus is not a legal person. Beyond that, the claim that Roe is some type of wild decision, unmoored from the Constitution and constitutional jurisprudence all the way back to the beginning, is an outright falsehood. It is either a deliberate false claim, mad by those who know enough to know better, or a claim made by naïve and untutored people who think that their "common sense" is an appropriate and sufficient guide to understanding the Constitution, what it is, how it operates, and what courts need to think about to apply it. The arguments in favor of Roe are all well within the boundaries of normal constitutional jurisprudence, whether you think the decisions was right or wrong on the merits.
- roidubouloi
September 16, 2012 at 4:12pm
Roid, I agree with your conception of Roe as striking an elegant balance between the state's interest in regulation on the one hand and the woman's liberty interest on the other. The former interest increases as the fetus develops infant-like attributes, and the latter interest decreases as time goes on and the woman sits on her rights to terminate the pregnancy early. I once put it in just these terms to some lawyer acquaintances of mine who were highly suspicious of Roe, and they liked it -- it clearly had some persuasive force. I think it had persuasive force, because it reflects what most people not laboring under clunky moral absolutism think about abortion ethics. When you read Roe, it doesn't quite put it in these terms, but I think it basically reflects this judgment. It's not the most satisfying answer in the world, because, as you acknowledge, respectable decisions could go in a totally different direction, the whole area is fraught with obvious legal and indeed moral indeterminacy -- abortion is, I think, a uniquely stubborn and difficult issue for policy and law -- and many people would vigorously disagree with Roe's settlement and have a decent argument to make. But I keep coming back to the "who decides" question. You have to err on one side or the other! Anti-Roe textualists *assume* that erring on the side of having the murky moral status of an embryo or fetus determined by the woman's neighbors rather than by herself is obviously the superior default rule. Let the state decide! they say. Democracy is our default rule! Why do you distrust our democratic institutions? To which the response is, I have many reasons I could get into, but, in the end, why not let *her* decide -- the actual individual affected, and the *only* individual affected with legal rights? Why shouldn't *liberty* -- just as nice a word as "democracy" -- be our default rule? It's a hard question, because we'd sometimes side with the individual and sometimes with her neighbors. I think a good Roe rewrite would go into some great length about the extraordinary nature of the governmental imposition proposed, all by way of showing that this is a particularly personal issue of great significance in people's real lives, a decision that the law can only plausibly take from the individual under some religious or other absolutist doctrine that, while sincerely believed by many, is simply not adopted by the Constitution and may not be foisted upon a dissenting minority. So, yes, I like Roe, but sort of in the way I like democracy -- the worst possible decision except for all the others.
- JakeH
September 17, 2012 at 2:36am
p.s. I shouldn't have said that abortion affects only one person with legal rights. It also affects the father, who takes on some legal and moral responsibilities at birth. But that's another story.
- JakeH
September 17, 2012 at 2:42am
Despite language that can vary a bit, the gist of the substantive due process doctrine, as I understand it, is that in a matter that is very close to an essential liberty (which we can assume for the moment includes, "Your body is yours.") the state is not absolutely excluded, but must demonstrate a compelling public interest, something that plainly threatens collective well-being. Thus, even though your body is yours, the state can require everyone to be vaccinated. And even though the state typically allows for conscientious/religious objection to vaccination, it could refuse to do so and require that everyone be vaccinated to protect public health. In the case of abortion, I find it almost impossible to conceive of an argument for a state interest in a microscopic embryo without resort to some notion or other of "the sanctity of life." What would that be? Indeed, the words betray the fundamentally religious basis of the sentiment. I think it is quite difficult for people to grasp that the Constitution is really all about process, how decisions are to be made and by whom, rather than a substantive law about what is good and what is not (which is of course the very reason why it has proven durable as a constitution). They also find it difficult to accept that the decision to allocate a particular decision to one actor or another does not require the expectation that the decision maker will be right. With regard to the freedom of speech, the Framers were quite clear that there were dangers to unregulated speech; they thought the dangers of regulated speech were greater and much more to be feared. The idea of "interest" as the core basis for allocation is both powerful and pragmatically sound. We do not have access to truth (although the religious like to think they do) and opinions vary amongst conscientious people. When we allocate the decision to the actor who has the most profound and compelling interest in the outcome, and exclude those who do not from participation or control, we have the greatest reason to think that the best outcome will be achieved more or most of the time. I think it is quite clear that the court (at least before the radical right ascended to power there) always defers to the state, or even to the executive alone, if the need is compelling, regardless of the personal liberty at stake. That is as it should be, but we should have a high standard for compelling state interest. The invocation alone must not be permitted to suffice.
- roidubouloi
September 17, 2012 at 9:54am
Hence the necessary conclusion that fathers too cannot be permitted to control the decision. As between the father and the mother, only the mother embodies, literally, all of the interests at stake. Her choice must govern.
- roidubouloi
September 17, 2012 at 10:25am