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.

5.1 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