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.