Monday, March 07, 2005

Pragmatic Textualism

I actually agree with a lot of what this Legal Fiction post says. It articulates a legal theory called "pragmatic textualism," which refuses to extend the constitution beyond what is actually written down, but similarly refuses to abide by originalist notions of what the text "means." As the author explains:
To me, the Constitution consists of words and nothing else. Text is the essence of what it is. But as any linguist would tell you, a word never has a single determinant meaning. Instead, it has a range of plausible meanings. The word "cool" can mean very different things, even though the actual text of the word itself remains the same. Words also change through time, and changes in background context can also change the meaning of the word. The text of the Constitution is no different. Words like "cruel," "unreasonable," "speech," "commerce," "cruel and unusual," and "search" lack a clear determinant meaning. That's not to say they are wholly indeterminate, but rather that there is a range of plausible meanings."

I've been somewhat enamored of this method of thinking since reading Democracy and Distrust by John Hart Ely. Although Ely and LF are really arguing different things, they both are based off rejecting originalism, a stance I agree on. But after what is a pretty persuasive analysis throughout, LF then makes a claim that almost seems like a parodied response to his own argument:
When you get away from this idea that we cannot stray from the brooding omnipresence in the sky that is the "original understanding," you can begin to inject more pragmatism and more democratic deliberation into matters that effect hundreds of millions of American lives. Obviously, we cannot stray from the text. "Cruel" can never mean something that only one state outlaws. But once we are within the bounds of the plausible, we can engage in policy analysis and other pragmatic inquiries to determine what the meaning should be. If "cruel" could plausibly mean "A" "B" or "C" then is it so wrong to ask what the right answer should be, when the answer could be any of the three? This is pragmatic textualism-- constitutional interpretation's Third Way. Its motto is:
When choosing among textually justified outcomes, it is emphatically the province and duty of the judiciary to say what the law should be, not what it is.

I understand what he's trying to say here. The Court's can't say what the law "is" because text is indeterminate. But his logic forces the question: why shouldn't the legislature be the one to choose between the different indeterminate meanings. That would be the democratic thing to do, and as long as the legislature stays within the bounded indeterminacy, I think it makes sense to assert that it should be a democratic branch who makes the call. I know Scalia would make that argument, and I'll admit it carries some weight with me.

I personally think the text should be and is intended to be interpreted broadly, both in terms of the powers granted to the government by the text and the powers denied to it by the text. This seems most in accordance with how our constitution was set up--the founders wanted a stronger system than the Articles of Confederation, but they were still very cognizant of the potential for oppression latent in any government. A non-originalist interpretation should stay faithful to that legacy, giving broad latitude to where the government is given jurisdiction (inter-state commerce, for example), but being zealous in the defense of the rights government is not permitted to impinge upon.

1 comment:

Anonymous said...

This seems by far the most sensible and intuitive approach:

Within the context of pragmatic textualism,

- Let the Judiciary rule on the plausible range of interpretations ("A and B are plausible, but C is not"), and

- Let the Legislature rule on which plausible interpretation to codify as law ("we shall pass Law A or B, but not ever C").

How hard could that be?