6.0 Constitutional interpretation and the scope of birthright citizenship

Who counts as a citizen of the country is a framework question. Does the 14^th Amendment confer birthright citizenship on the sons and daughters of all immigrants, even those illegally present? Or does the ambiguity of the concept of "jurisdiction" leave room for laws defining natural citizenship less broadly? The puzzle's solution depends on what method of constitutional interpretation you apply.

Our issue is interpreting the first clause of Section 1 of the 14^th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The ambiguity of "jurisdiction"—a context-bound concept in U.S. law—sets the problem. I earlier concluded that textualist interpretation offers much to recommend jurisprudentially, as it comports with American Constitutionalism. Using essentially textualist methods, the U. S. Supreme Court held for the broadest birthright-citizenship in dicta in the thorough opinion United States v. Wong Kim Ark (1898) 169 U.S. 649. The Wong Kim Ark court found the term's meaning authoritatively interpreted in the earlier decision The Exchange (1812) 7 Cranch. 116. (See Wong Kim Ark, supra at p. 683.) Note the rule-governed, text-based nature of the interpretation in this passage:

By the civil rights act of 1866, 'all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,' were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, 'not subject to any foreign power,' were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright; or, for instance, for the first time in our history, to deny the right of citizenship to native-born children or foreign white parents not in the diplomatic service of their own country, nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the civil rights act, 'not subject to any foreign power,' gave way, in the fourteenth amendment of the constitution, to the affirmative words, 'subject to the jurisdiction of the United States.'

(Wong Kim Ark, supra at p. 688.)

Notice the use of analytic rules, a kind of common law of interpretation. In construing "jurisdiction" the court solves the puzzle like an equation, substituting a definition obtained from an earlier case. This is excellent textual analysis, but as authority, it is dicta: Wong Kim Ark found that one foreigners' son was not a citizen because he was born outside the U.S.

The Wong Kim Ark dictum wouldn't deter an Originalist; he observes that the 14^th Amendment, designed to grant citizenship to slaves, did not have the offspring of illegal immigrants in contemplation: the United States hadn't yet passed any immigration laws. Strong Originalists are loathe to restrict the power of Congress when the legislation forbidden was outside the originators' contemplation, but omission of any protection not in the original contemplation is an extreme Originalist variant, which struggles hopelessly against vagueness, as it supplies no guidance on how much information about a future event must fall outside the originators' anticipation to disqualify. Professor Richard A. Posner proposed a more moderate Originalism, according to which the judge must place himself in the position of the originators: what would the originators advocate if they could foresee the new conditions, assuming the least historical modification yet placing the matter in the judge's purview. Using this approach, a court could imagine what the originators would have provided if immigration restrictions had existed at the time of the 14th Amendment's promulgation. An Originalist judge would likely rule that the patriotic originators, having won a war to preserve the Union, would not have intended to provide a law-breaking incentive which yielded no offsetting gain for the extant inhabitants. Such a judge would be likely to rule that an illegal immigrant's child is not—in the sense the proponents and ratifiers intended—born within the "jurisdiction" of the United States.

5.13 Constitutionalism is secessionist

(Thirteenth in series: The interpretation of statutes and the denial of judges' powers.)

The obvious reason to think secession is Constitutionalism's weakest point is that's where Constitutionalism almost broke. The Federal government won the Civil War militarily and morally, but neither victory meant the North had the better legal theory. Secessionist movements continue to lurk at the social margins because Constitutionalism's logic favors the right of states to secede.

The U.S. Constitution contains vertical as well as horizontal checks and balances, the federal government balanced by the states. The federal government can preempt the states in distinct domains, but outside, the States have exclusive jurisdiction. Yet, the system is ultimately unbalanced, in that a branch of the federal government resolves conflicts between the states and the federal government. Unlike other checks, where each evokes a potential countercheck, the states can't answer an adverse decision by the U.S. Supreme Court. The Supreme Court may be sympathetic to states' rights, but the long-run trend is in the opposite direction to the extent the structural factor determines the drift.

The federal government continually gains power at the states' expense. To note this trend is not to extol states' rights or to maintain they beneficially check the federal government but only to mention a consequence of structural imbalance; nor is it to say that the imbalance — the structural deviation from blueprint — lacks adverse consequences. Missing for a true system of mutual checks is the necessary counterweight in a system where states' rights are supposed to endure: the right of the states to secede. That secessionism is simultaneously inimical to the Constitutional system points to Constitutionalism's peril, not its salvation, but secessionist movements' failure also shows that for general historical determinism legal structure isn't omnipotent.

5.10 Against the writ of certiorari

(Tenth in series: The interpretation of statutes and the denial of judges' powers.)

Let's apply this theory of constitutional interpretation to the modern problem of nonprecedential opinions: oppositionists interpret the judicial power, limited to cases and controversies, as excluding the right to choose which cases make law. To apply the structure-function theory, first evaluate the interpretation for fit with the separation of powers and the system of checks and balances. The separation of powers departmentalizes the major government functions; so the interpretation offered strengthens separation of powers by drawing a firmer line between judicial and legislative functions. Giving government branches certain contrafunctional duties furthers the system of checks and balances, but checks and balances, partly countervailing against separation of powers, is harder to assess. The checking power must facilitate the intruding branch's stymying of other branches but not initiating their functions. The power to choose which cases are precedential is suitable for fostering an independent judicial agenda, not well tailored to block those of other branches: think of the presidential veto or congressional ratification of presidential appointments.

Nonprecedential opinions violate a core structural feature of the U.S. Constitution, but criticism hasn't been influential among most judges. To assess the practice's durability under the structure-function theory, you must also consider how far our other norms depart from constitutional blueprint. If even without the distortion introduced by nonprecedential opinions, the judiciary still assumes legislative functions, the pull toward reforming the practice diminishes. Seemingly unnoticed by the critics of unpublished opinions, the judiciary's usurpation of legislative functions long predated nonprecedenntial opinions. A still more important deviation from norms occurred when the Judges Act of 1925 gave the U.S. Supreme Court the power to choose its cases.

Case selection invokes a legislative function in the same way as nonprecedential opinions; choosing which cases to review is even further removed from deciding cases and controversies than deciding which cases to publish. The legislative nature of nonprecedential cases may seem greater because delaying the decision allows the court to base precedent creation on firmer nonjudicial information. Although the court must decide before hearing the case, and it doesn't know how the case will go, the appellate courts do well in prediction. The U.S. Supreme Court reverses 75% of cases it selects for review, a good percentage if the court wants to make law. When a court selects its cases, it makes a restrictive legislative selection without even hearing the other cases.

Little fanfare accompanied huge change introduced by the Judges Act, which Chief Justice William Howard Taft pushed for efficiency's sake. Lawyers missed the judicial-expansionist nature of the writ of certiorari because the Supreme Court was almost unreservedly popular during this politically reactionary era, and commentators viewed the Judges Act as decreasing the Supreme Court's power, Taft hardly being an "activist." The Judges Act of 1925 gives opponents of the political power of unrepresentative officials today an obstacle and an avenue seldom mentioned. Congress should strip the Supreme Court of its power to select cases. Limiting Supreme Court review to cases which show a conflict between federal circuits is one alternative, provided the Supreme Court must review all conflicting cases where a party appeals from the Court of Appeals. The Supreme Court's power to select cases for review burdens democracy at the same time as it conflicts with constitutionalism. Politicians who tempt Supreme Court justices to exercise legislative power while criticizing them for pursuing a political agenda act as ineffectually or hypocritically as U.S. bank regulators.

5.9 The common law of statutory and constitutional construction

(Ninth in series: The interpretation of statutes and the denial of judges' powers.)

Can we really avoid a deliberative theory? Perplexity comes from the apparent incoherence of interpretation without defined constraints. "What are we searching for when we construe a statute [or a constitutional provision]," asks Justice Scalia in Common-law Courts in a Civil-Law system: The Role of United States Federal Courts in Interpreting the Constitution and Laws. From the perspective of a legal formalist like Justice Scalia, the absence of an ultimate objective — of the whole point of the interpretive enterprise — is deeply disturbing and fatal indictment of contemporary jurisprudence.

Justice Scalia claims that the common law method of developing the law is restricted to certain traditional fields like torts, contracts, and property. The common law has become irrelevant to the bulk of legal rules, and, today, the courts must construe statutes, instead of creating rules of law in common-law fashion. Even assuming the dubious notion of statutory interpretation without rule creation, Justice Scalia refrains from analyzing interpretive-principle creation — whether canonical or local, express or tacit.

Justice Scalia and most theorists ignore the ongoing common-law evolution of interpretive rules because they think interpretive principles and small-scale inference patterns don't bind as precedent, but terming the interpretive methods narrow, fact-specific, and defeasible would be more precise than terming them nonprecedential. Commentators who say interpretive methods lack even subjective precedential force conceive "methods" broadly, as though these must apply with the same scope as deliberative theories of interpretation, like Interpretivism and Originalism: theories that describe process, rather than outcome.

The deliberative theories bear the same relationship to narrow-scope and defeasible principles of interpretation as statutory law bears to the common law. Both replace tentative standards amenable to piecemeal evolution—having determinate rules and a reliable evolutionary mechanism—with a method perfectible in principle and dependent on consciously taken singular acts, which are sometimes broad in impact. Justice Scalia, exponent of codification, is consistent in also embracing the interpretive analog of codification, broad deliberative theory of interpretation; but the principles of statutory and constitutional construction are subject to common-law development because most judges resist interpretive theories.

5.8 Constitutions are inherently meaningless

(Eighth in series: The interpretation of statutes and the denial of judges' powers.)

The present theory expounds a manner of Constitutional construction as a trend issuing from the Constitution's structural features and their central role in using the Constitution as a government blueprint. For the constitution to produce a workable government, it must cause, not recommend, obedience to its structural design and the goals normally served by these design features. This theory differs from the usual run of theories, such as Originalism and Interpretivism, in absence of mandate. The only thing to be said for relying on this structure-function theory of interpretation in performing interpretation is that it will help you pick the interpretation with some likelihood of being deemed right in the long-term. Arguments tend to gain force to the extent that they line up with the predictions the theory makes. Described is the only theory needed to solve the problem for a theory of interpretation, the interpretive enigma.

Not merely the only theory we need, it is as much of a theory as we can have. The constitutions of some jurisdictions, containing clauses instructing on the manner of interpreting the constitution, show why we can't have a deliberative theory. Express provisions often instruct to look first to the ordinary meaning of the terms and stop there in the absence of ambiguity. Interpreters of constitutions without explicit provision for their interpretation usually arrive at this conclusion, and it doesn't rescue them from interpretive conflict; this provision could increase interpretive-method differences because it causes an explicit focus on a particularly subtle meta-theoretic issue. Whether it increases or decreases the interpretive variance, it doesn't eliminate or trivialize it. Any written standard must be interpreted. It is fundamentally in a position no different from other constitutional provisions.

Sometimes theorists maintain that a method of interpretation is implicit in having a written constitution. Since the constitution enacts words for the general public obedience, these theorists say, having a written constitution implicitly means using a textualist method of interpretation, but a text can't adequately dictate methods to interpreters. A common rejoinder points out that the people enacted the text, not some associated meanings or not the intent behind the text, and so, if the Framers had wanted the country to look to their motives, they could have said so in the text. The rejoinder begs the question. Provisions were enacted; but to construe the voting ritual as an endorsement of the text may seem natural, yet it is logically arbitrary.

Why does it seem natural to interpret a provision as equivalent to its text? Not because in interpreting cultural products in general we impose these limits. When a drillmaster counts the march beat, the numbers or other sounds he uses are beside the point. To interpret is to assign meaning relative to current purposes channeled by habit; interpreting laws by the public meaning of their text is natural because of myriad legal habits. A constitution means nothing except in a culture prepared to receive it, and it means what it does only because of the manner of reception given by habits of thought.

If a culture prepared to interpret the constitution preconditions its playing an actual governing role, a constitution will produce workable government only to the extent that interpreters are impelled to choose an interpretation that reliably ensures sufficiently coherent development. The constitution's actual provisions must cause their "correct" interpretation by means other than direct mandate or implicit direction.

5.7 Exploring the Interpretive Enigma

(Seventh in series: The interpretation of statutes and the denial of judges' powers.)

The interpretive enigma shows that it is impossible to interpret the constitution without a theory of constitutional interpretation. What it doesn't show is that there must be a unique reigning theory of interpretation. A different theory for different circumstances remains within the model. If courts use different theories depending on circumstances, the conceptual device assigning situation to theory is itself an overarching theory. Rather than choosing a theory based on a shared rationality, judges might choose theories arbitrarily, or they might use different overarching theories. Then no underlying idealization would depict the causal propensities in interpretive discourse.

How can we distinguish these conditions? If judges used different theories of constitutional interpretation, over time interpretations of the constitution would increasingly diverge. Increasingly, as schools of thought multiply, any consensus on the meaning of constitutional provisions would thin unless matters change with stare decisis. Broad precedential holdings may replace constitutional amendment in clarifying the constitution. The convergence new constraints impelled would offset the divergence of views, but this solution presupposes what it tries to explain, the progressive clarification of text by interpretation, a broad amendment-like holding requiring interpretation no less than the provision it construes. Precedent doesn't solve the clarification problem if precedential holdings also require interpretation, and the need to revisit interpretations seems too rare in comparison to construing the underlying text. The progression implies that the constitution is not only adapted to new circumstances but is better understood or at least more narrowly understood, so it is more reliably applied as it is further interpreted.

The underlying features that require consistent application to create a stable system are predominantly the formal functional characteristics of the structures the Constitution creates. Checks and balances and separation of powers are among the key formal functions of U.S. Constitutional structures.

5.6 Adjudicating without a theory of Constitutional interpretation

(Sixth in The interpretation of statutes and the denial of judges' power series.)

Substantive Constitutional questions are eventually settled semi-permanently, but methods of Constitutional interpretation are rarely settled. This order of business is irrational because fundamental disagreement about interpretive methods obstructs judicial debate about specific provisions' meaning. How can you debate what the Constitution means when you don't agree about what it means for the Constitution to "mean" something?

One proposed pragmatist solution (Mitchell N. Berman, Originalism is Bunk (2009) 84 N.Y.U. L. Rev. 1; hat tip, Legal Theory Blog) illustrates the problem besetting pluralist resolutions of the problems of interpretation. As a description of much of the judiciary's workings, this account seems approximately right, but it doesn't solve the interpretive enigma: how can judges debate Constitutional meaning when they disagree about the basic nature of the meaning they're trying to elucidate? If the courts solve the problem of interpretation in tandem with the substantive issue presented, as Berman argues, what interpretive method do the courts use for that amalgamated determination?

The point is easiest to understand from a hypothetical Berman provides concerning a non-Constitutional matter that yet addresses how the court might select interpretive methods contextually. (Berman, Originalism is Bunk, supra, at p. 45.) A radio station offers a reward to the first call-ins after 12 a.m., which the offeror believed means noon. Listeners satisfying the literal (earlier) midnight opening sue based on public meaning. To avoid considerations of equity unrelated to meaning, imagine the governing statute refers simply to "meaning." Should the court respect the offeror's meaning or the public meaning?

Claims Berman, the court doesn't need an interpretive theory to read "meaning" as public meaning because it is least disappointing to the rightful expectations of participants and most consistent with the function of announcements, but what makes those factors criterial? A tacit interpretive theory leads Berman to select interpretive methods according to the public purpose of the message and the expectations of the recipients. A pragmatist standard, it elevates short-term satisfaction and sets shallow goals achievable with certainty. (An alternative standard might be formalist and seek to align the meaning of "meaning" as used throughout the code.) Berman's pragmatist stance injects judicial preferences into the decision, although doing so in the hypothetical is relatively innocuous. Berman's approach in principle amounts to a form of result-driven adjudication, so universally rejected (again, in principle) and deemed so insulting as an accusation that in some jurisdictions an attorney may be sanctioned for disrespect after so describing a decision.

5.5 Textualism = American Constitutionalism

(Fifth in The interpretation of statutes and the denial of judges' power series.)

Textualism better than purposivism represents the American republican form of government, a system of checks and balances with the judiciary co-equal, because textualism supplies the courts with a basis for substantive opposition to the legislature. Textualism's natural fit with American constitutionalism was obscured after the demise of natural-law jurisprudence because the Supreme Court's resistance to progress was broken by an executive and legislative coalition, coercing the judiciary to speak the purposivist language of legislative supremacy. Not that the outcome was unfortunate: the point is that this deviation from constitutional blueprint was an unreliable basis for political planning. That the judiciary would eventually find a substitute for natural law was always likely, maybe inevitable.

If the courts are to check and balance the legislature, their opinions must have a source of legitimatization. The American constitution doesn't envision courts supplanting the legislature by the legislature's own devices, yet the constitution does envision that the judiciary exercise substantive checks and balances. When the Framers debated the constitution, they defended the independent judiciary because it could refuse to apply oppressive or unwise laws, a point Hamilton argued in the language of his time's natural-law jurisprudence. Today the only basis for the courts to disagree with the legislature outside the narrow set of constitutional cases is to oppose statutory text to legislative will. Textualism substitutes for conventional natural law the modern imperative to say what you mean.

Adherence to textualism doesn't let the courts veto any legislation that it thinks "oppressive or unwise," but laws that don't say what they mean are themselves a form of oppression. Such laws not only fail to inform citizens of their duties but allow the legislature to achieve indirectly what it would be ashamed to seek expressly. Misdescribing its intentions can also help the legislature engage in self-deception, so it may oppress by seemingly expressing the opposite.

When natural law broke down under F.D.R.'s direct political attack, the positivists' theoretical fire, and science's siege of theism's credibility, the will of the people was substituted for natural law, but it was a poor substitute. A unitary popular will, manifested in the decisions of elected representatives, can hardly check and balance itself. In retreat waving a purposivist white flag, the courts submitted to domination by other branches of government — at least when compared to the commandingly doctrinal laissez-faire economics that preceded. While the longevity of this arrangement proves the limited strength of interpretation's migratory tendency toward juridical coherence, it also illustrates that tendency. The eventual textualist reversal of direction occurred because the constitutional system allowed — was inherently conducive to — the courts' being much more than Congress's faithful servant. Textualism gave the courts room to assert independent power.

In principle textualism's initial form expanded judicial power beyond constitutional boundaries by providing few real constraints on interpretation, but increasingly textualism has become more restrained, almost merging with a restrained form of purposivism on its near left. This is its present internally driven trend, corresponding to a better fit with the constitutional blueprint and its purposes.

Next: The practical significance of the U.S. Constitution's democratic shortcomings.

5.4 Correctness and Legal Efficacy

(Fourth in The interpretation of statutes and the denial of judges' power series.)

The first concern when evaluating textualism and purposivism against constitutional imperatives is whether talk of "the correct interpretation of constitutions and statutes" is even meaningful. Even if comparison against an objective standard is possible, why does it matter whether the interpretation is correct when the better policy contravenes the so-called correct interpretation? As I am more enthusiastic about the dictates of democracy than the specifics of the U.S. Constitution, what significance should it have, as I will claim, that a form of textualism better expresses constitutional imperatives? My hypothesis is that the correct interpretation of the constitution is significant not because constitutional statutes make better policy but because all else being equal the sequence of judicial interpretations tends to approach the constitutionally correct interpretation. The underlying metaphor is of the correct interpretation representing a constant force acting, like gravity, on the statute's interpretation, and, also like gravity, the force increases as the interpretation enters the correct interpretation's neighborhood.

This interpretive improvement takes place both by assimilation and accommodation. The accommodative version is straightforward. The law moves progressively closer to the correct interpretation. In the assimilative convergence, other laws are interpreted based on the (initially wrong) interpretation, so that what was legally wrong becomes right, as law establishes coherence with (initial) error, creating new masses counteracting the original gravitation pull.

Brown v. Board of Education illustrates by containing divergent possibilities. After Plessey v. Ferguson, separate but equal became entrenched throughout the law, and the segregationist interpretation of the 14th amendment became more legally right with time, not less right, like a "Living Constitutionalist" might say. The interpretation yet remained inferior to the plain-meaning interpretation: separate is not equal because separate means different with respect to spatial disposition, and equal means the same in every respect. When an interpretation really is true by plain meaning, almost nothing can overcome it. So when there intervened other circumstances — such as international revulsion at American racism — seizing on the integrationist interpretation was easy, even though court unanimity allowed only a superficial empirical argument, rather than a broadly applicable (and more correct) plain-meaning one.

Correct interpretations should exert an attractive force that actual law approaches at the limit, but the question of degree can't be resolved at so general level of argument. The degree of interpretive pull the correct view exerts depends partly on the push of the correct method: will judges converge on a version of textualism? We now turn to why the U.S. Constitution is textualist.

5.3 Lessons from the civil law

(Third in The interpretation of statutes and the denial of judges' power series.)

American doctrine of government division is based on two theories: separation of powers and checks and balances. Often presented as complementary, the two contain tensions, even contradictions, for government branches can check each other only by exercising alien functions. The executive checks the legislature partly by encroaching on legislative terrain with the veto power. Congress checks the executive by disapproving appropriations for executive functions, intruding on their exercise. Congress checks the judiciary by over-ruling judicial interpretations by writing new laws re-interpreting old ones. The executive checks the judiciary because its discretion in execution contains more than a modicum of interpretation.

The courts interpret and construe the law to check and balance both the legislature and the executive. The U.S. Constitutional system envisions the courts an active participant in the tripartite division of power. A judiciary rigorously limited to applying the law wouldn't satisfy the constitution's basic requirements, as wouldn't an executive limited to ministerial acts. American constitutionalism here conflicts with democratic ideology: the reason American judges are both respected and reviled. This conflict between American constitutionalism and democracy provides the final analogy for understanding what purposivism and textualism imply about a functioning government, before we look at the conflict itself more directly.

We seek the consequences of this intra-ideological conflict by taking a natural experiment where legislative supremacy is uncontradicted by checking or balancing: the civil-law systems of France, Italy, and Germany. The civil-law's version of separation of powers arose as doctrine after the French Revolution vacated all encroachments on the legislature's exclusive right to legislate. The civil codes aspired to certainty and completeness; interpretation was to be avoided, but, if necessary, the courts were supposed to ask the legislature for guidance. Interpretation, alas, was the norm; despite best efforts, the cases arising are seldom anticipated when legislation is passed. The civil law developed institutions where the courts shamefacedly interpreted the law and unofficially even established precedents. A typical civil code contains instructions to interpret the law based on text and legislative intent; if uncertainties remain, by the overall system of government; and, as last resort, how the judge would decide the matter acting as the legislator.

The civil-law system originated under mandate to strip judges of all real power. Even today, civilian systems view judges as bureaucrats subordinate to the legislature. What powers of interpretation accrued to judges at civil law resulted not from their influence nor the connivance of ruling ideology but the foremost practical necessity, workload reduction. A self-interpreting law is unwritable; the civil law conceded on judicial interpretation, but the civilian system has no imperative to balance legislative power. The original French civil-law system approached the thought experiment at this series' start, subjecting the courts to present legislative purposes. When the system evolved as needs of state expanded, the courts remained under mandate to obey legislative intent, and the courts in civilian countries consult legislative history freely. The civil-law system, unambivalently committed to legislative supremacy, evolved a purposivist approach to statutory interpretation.

Next, what the American system of checks and balances means for statutory interpretation.

5.2 “Faithful servant” through an employment-law lens

(Second in The interpretation of statutes and the denial of judges' power series.)

In the preceding entry I extrapolated purposivism to show it stands for more responsiveness to the legislature, textualism, less. The next analogy shows that purposivism conceives of a relationship more like an employee (Servant) relationship, whereas textualists create a relationship between courts and Congress like that between an employer (Buyer) and independent contractor (Contractor). The parallel suggests conclusions about the relations between courts and Congress each doctrine envisions.

By Servant relationship I will mean the status of an employee at will, the status enjoyed (literally, not) by the great majority of American workers. An employment-at-will relationship exists whenever an express employment contract doesn't, creating a status allowing Servant's discharge "for good reason, bad reason, or no reason at all." As the "at-will" formula implies, Master expects Servant will work his will. Having the power to demand Servant do as Master wishes, even if this seems to require reading Master's mind, Master wants to realize his actual purposes, even if they contradict what he inscribes or verbalizes. Master gives Servant orders as means to ends, and, while purposes are subject to sublimation, the substitution of a wish's expressed misdescription for the wish itself undermines its fulfillment. If Master tells Servant to take out the garbage, Master doesn't expect Servant, Jonathan, to arrange a date with Master's competitor, Jacqueline, whom Master, in a competitive rage, had yesterday defined as "garbage." For the employer to delight in obedience to his words when they contradict his will would be perverse when generalized. Master may yet fire a Servant who goes too far beyond Master's words, even when Servant satisfies Master's wishes. Master wants to avoid the risks attending a speculating Servant, so Master will impose a more textualist regime on Servant when Master distrusts Servant's judgment. Master's "textualism" never comes close to wanting Servant to ignore Master's purposes.

The relationship between agent, text, and the principal's purpose differs when Contractor accepts a job. Buyer pays Contractor to satisfy a narrow intention expressed in a contract, often written, its interpretation textualist. Contractor doesn't have to gratify the wishes of Buyer; he need only satisfy the contract's terms. Why then does an employer choose to be Buyer? In the prototype situation, the employer lacks the specialized knowledge to supervise a Servant, to whom he would anyway have to grant the autonomy of a Contractor. The Buyer - Contractor relationship is tailored to high employee autonomy because it compensates employer for reduced control by shifting various duties to Contractor. A homeowner can sue a building contractor but not a Servant for misfeasance, and third parties can sue the homeowner as Master, when they cannot sue homeowner Buyer. The pattern shows that the employer prefers the Master-Servant relationship because employer charges for forgoing it by requiring Buyer to assume duties formerly employer's.

A textualist court stands to the legislature like Contractor to Buyer, the text of the statute replacing the job-contract's terms. This is a more powerful position than occupied by a purposivist court, which mimics a Servant by making the legislature Master.

5.1 Contradictions of the American judiciary

Since a powerful life-appointed federal judiciary ill accords with democratic ideology, American judges have always understated their own power. (Eskridge & Frickey, Statutory Interpretation as Practical Reasoning (1990) 42 Stan. L. Rev. 321, 324 ["counter-majoritarian anxiety"].) Ideology mismatches reality so badly it drives the interpretive school that would most enhance judicial power to portray the school's proposals as Congress's liberation from judicial fetters. These textualists propose that the judiciary should become Congress's "faithful servant" by ignoring Congress's purposes. (Marmor, The Immorality of Textualism (2005) 38 Loy. L.A. L. Rev. 2063, 65.)

Purposivists and textualists agree that the meaning of legislation is set when enacted, but logically the convention is optional. (For definitions, see Eskridge & Frickey, Statutory Interpretation as Practical Reasoning, supra, 42 Stan. L. Rev. at p. 324.) What Congress intended years ago when it passed certain laws isn't transparently pivotal to determining real legislative purpose, only the purpose of enacting the particular legislation. True, a legislature has power to enact legislation only if it can count on the courts enforcing its intent as of the enactment date. The reliable-enforcement precondition for the legislature's authority rebuts using preceding indicators of legislative opinion to contradict the legislature's resolve; it doesn't rebut using indicators of Congress's subsequently changed views to revise how the courts understand legislation previously enacted. This envisioned system takes purposivism to limit by focusing on the legislature's present views and purposes and disregarding an enactment's incongruence with legislative purposes formed after enactment, creating a far more purposivist system than Justices Marshall, Brennan, or Stevens would consider advocating: whenever a significant change occurs in the outlook of legislators, the Congressional Record records it, and the courts must adjust their legal interpretations. The scheme forces courts to track the current legislative stance on the law. If the legislature had defined "discrimination" for the purposes of the Civil Rights Act as distinct procedures favoring nonminorities, and election of new legislators or other developments caused the legislators to decide that "discrimination" in that statutory context is better defined as different outcomes for nonminorities, as soon as Congress publishes the record, the courts must follow.

Since this is only a thought experiment to depict a judiciary more completely the legislature's servant, other arguments against the relationship envisioned—notice and fairness to individuals—can be cabined as distractions. One argument against making the courts ultraresponsive to the legislature—the notice issue—is that citizens lack sufficient notice when the legal meanings fluctuate. We have long accepted that citizens look to legal professionals to interpret the law, but when some unnoticed Congressional activity causes the law to change, even the most informed attorneys might not register the changes affecting their clients. Another impracticality is properly insulating the courts legislative pressure applying the law equitably to different persons. I assume only for the sake of the thought experiment these objections can be met.

If you take care to avoid distraction by notice and fairness issues, you might agree constructing this extreme case helps show that ultrapurposivism is ultrademocratic; hence, ordinary purposivism is more democratic and legislative supremacist than textualism. Textualists get away with their claims because the narrow difference between extant purposivism and textualism doesn't make the real contrast immediately obvious. Extreme purposivism shows that if the legislature is truly supreme and the judiciary its servant, the judiciary serves according to the legislature's will, not the terms of its enactments.

Next in series: More arguments purposivists act more like servants of the legislature than do textualists

5. The interpretation of statutes and the denial of judges' power

A SERIES on statutory interpretation as formal mechanism of power. The series culminates in a theory of statutory and constitutional interpretation.

3. Rights, reinterpretation, and reform

Reconstructions of Constitutional rights are a popular academic topic, but reinterpreting the Constitution should be a disfavored reform strategy. Reconstruction is piecemeal, changes have holistic significance, and unexpected consequences are apt to defeat the reformers' aim. Consider the construction of the First Amendment's free-speech right and the hypothetical legal consequences of accepting Justice Hugo Black's superior First Amendment jurisprudence.

Our First Amendment jurisprudence bifurcates free-speech policy into preventing viewpoint discrimination and opportunity or volume constriction. The courts use, to a first approximation, strict scrutiny for discrimination by viewpoint and an intermediate level of scrutiny for time, place, and manner constraints. (See Stone, Content-Neutral Restrictions (1987) 54 U. Chi. L. Rev. 46.) Respected scholars advocate various analyses, which must limit First Amendment liberty because exercising “no restraint” literally would induce cacophony. (See, e.g., McDonald, Speech and distrust: Rethinking the content approach to protecting freedom of expression. (2006) 81 Notre Dame L. Rev. [advocating balancing test].) Justice Black's speech-versus-act approach can't, as he hoped, avoid construction, not for the sophistic reason that speech is action but rather because restraints on speech-related acts constrain associated speech. The vagueness subtracted from "speech" is added to the vagueness of "restrain." Just as one act is more or less speechlike than another, one measure is more restraintlike, but no objective metric or guidance prescribes a dichotomy. Yet, Black's approach is superior even it if doesn't achieve the hoped for constructionless textual interpretation. Black specifies the behavior the First Amendment protects as speech differently. On restricting seditious speech, for example, Black rejected any balancing test, even the clear and present danger test modified by the currently leading case, Brandenburg v. Ohio (1969) 395 U.S. 444. Black contended the law could suppress calls for unlawful antigovernment action only when immediately obeyed commands turned speech into the act of incitement. Although viewpoint neutrality and volume maximization don't formally conflict, Black's First Amendment jurisprudence emphasizes viewpoint neutrality protection at volume maximization's expense.

Sheer jurisprudential elegance favors Black, and strong arguments tell against the prevailing view. Where does the Constitution's text distinguish between intermediate and strict scrutiny? The test comes from an inference about intended policy, weighing viewpoint discrimination and volume constriction. Does the policy inference come from social practices contemporary with the Founders? Then we assume the Constitution capable only of enshrining social practices, rather than changing them. We may also have to assume that law authorizes whatever a majority of its proponents believe, instead of being limited to that portion of their beliefs they sought to codify. By comparison, Black's view escapes Occam's Razor by avoiding multiplication of a single right's aims. Black's interpretation also seems a stronger bar to oppression. Black's literal interpretation of "speech" minimizes the restraints applied further than Brandenburg v. Ohio, supra, and invalidates all defamation law and anti-obscenity laws. But this same concrete interpretation prevents giving speech the broad sweep of contemporary First Amendment jurisprudence in extending it to acts speechlike only in their communicative intent. While Black would sacrifice some decisions civil libertarians are fond of, explicitly verbal communication is still ideology's main vehicle, and suppressing speech based on viewpoint is historically the main motive for suppressing speech to obfuscate and deceive.

The motive for the volume-maximization policy is hard to understand on its own terms because volume maximization serves a different right. Speech restrictions most disadvantage those with fewest means. Intermediate scrutiny of nonideological speech constraints protects the expressive rights of citizens without means to circumvent time, place, and manner restrictions. Because the courts haven't used economic status to define any suspect class, the First Amendment's recentering without broadening the Fifth Amendment would delete Constitutional protection for accessible expressive outlets.