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Sunday, June 25, 2017

Does Article VII's Up-or-Down Process Weaken the Case for Constitutional Textualism (i.e., New Originalism")??

In constitutional interpretation, the "New Originalism" (nicely described by Larry Solum, among other places, here) bears an uncanny resemblance to the old statutory textualism of the mid-1990s and early 2000s. The focus of New Originalists on the original public meaning" of the Constitution's text is essentially (at least so far as I can tell) just constitutional version of the idea that the law is to be found not in the law-makers' intentions or even the law's apparent Big Purpose but instead in those textual details that reflect the compromises necessary to enact the law.

The analogy between the New (Constitutional) Originalists and the old statutory textualists, however, breaks down in one possibly important respect. In the context of statutory interpretation, statutory textualists justified textual primacy with the idea of the Statutory Compromise: The little details of text reflect a the vector of forces in the legislature both for and against a statute. To quote John Manning, "courts risk upsetting a complex bargain among legislative stakeholders if judges rewrite a clear but messy statute to make it more congruent with some asserted background purpose." Choosing between series qualifiers and last antecedents, fly-specking contemporary dictionaries (or now, for the cognoscenti, "corpus linguistics"), arguing about the application of Latinate "intrinsic aids" are all just ways to decipher the legislative bargain, because the various interests in the legislature allegedly talk to each other through such arcana. By respecting the text, you respect the deal hammered out between equals, thereby protecting best evidence of what We the People, in our quarrelsome, squabbling collective soul, really want (and don't want).

None of this reasoning about statutory bargains, however, applies very well to the "take-it-or-leave-it" constitutional text presented by the Federalist-dominated Philadelphia convention to state ratifying conventions. The state conventions had to approve or disapprove that text through seriatim up-or-down votes without any chance to amend the proposal. As Romer and Rosenthal noted almost 40 years ago, monopoly power to set the agenda with an unamendable proposal allows the agenda-setter to press through measures that the voters might actually dislike much more than many plausible alternative taken off the table. The Anti-Federalists understood Romer's and Rosenthal's insight without needing any graphs and equations: They repeatedly and bitterly complained that they had no chance to fine-tune the proposal by modifying powers, craft compromises, or multiply rights.

Why, then should anyone take the textual details of this take-it-or-leave-it text to reflect some normatively attractive vector of interests? At the very least, the normative argument routinely deployed on behalf of statutory textualism -- textual details reflect a fair compromise among legislation's supporters and opponents -- seems out of place with the New Originalism. "Purposivism" rather than textualism, therefore, might, therefore, be the most appropriate interpretative stance for our Constitution. With such a Constitution as opposed to statutes, we ought to be skeptical about textual certainty and willing to find ambiguity justifying non-semantic "constitutional construction. To paraphrase McCulloch, we must never forget that it is a take-it-or-leave-it text that we are expounding.

Posted by Rick Hills on June 25, 2017 at 06:14 PM | Permalink


This strikes me as a bit disingenuous since many of those who eventually would adopt the anti-federalist position (such as Patrick Henry) turned down their appointments as delegates to the convention. So, it really isn't that their advice wasn't sought; it's that they refused to give it.

It is also worth noting that use of the term "federalist" in this context is, itself, an anachronism since "Federalists" did not exist until after the convention. Indeed, those that favored the Virginia Plan would have called themselves "nationalists" and their opponents (those that supported only amending the Articles) "federalists".

Posted by: YesterdayIKilledAMammoth | Jun 25, 2017 7:10:46 PM

I had always thought the normative case for textualism had nothing much to do with the text of statutes representing "some normatively attractive vector of interests" or a "fair" compromise; rather, I thought the idea was that everything Congress does is so normatively unattractive and so incoherent and irrational that we are unfaithful to Congress if we attempt to read their legislation in a purposively coherent or normatively attractive way, as the work of reasonable legislators pursuing reasonable purposes reasonably. I've always thought of textualism (to which I'm an adherent) as a cousin of Holmes's constitutional nihilism, e.g., his famous remark that it was his job to help his fellow citizens go to hell if they wanted to.

Posted by: Asher Steinberg | Jun 25, 2017 7:23:33 PM

Asher, I think that the snaggle-toothed cynicism about the legislative process that you describe is more typical of what John Manning called "First-Generation textualism." I agree with John that this "early reliance on deeply cynical arguments about the legislative process" has largely been debunked by (among others) Phil Frickey and Bill Eskridge. Latter-day Eskridge-ites like Abbe Gluck have truly buried the idea that the legislative process is chaotic and incoherent.

Second-generation textualism relies on the idea that text reflects a precise vector of interests that bargain over the exact wording. The trivial number of Anti-Federalists at Philadelphia (most of whom bailed early in August of 1787, because they saw that the Convention headed in an unacceptably nationalist direction) belies any serious suggestion that the precise wording of the Constitution is somehow the result of a bargain between the major 18th century factions.

Posted by: Rick Hills | Jun 25, 2017 9:26:30 PM

Frankly, I don't think Gluck has buried a thing in this regard, or that her research even bears on whether the legislative process (as opposed to the drafting process that ensues after some outline of legislation is relayed to drafting staff) is chaotic or not, and I certainly don't think she has shown that legislative intentions are excavable (on which see Ryan Doerfler's "Who Cares How Congress Really Works?"). As to what second-generation textualism relies on, I think it really relies only on the more modest claim that the text usually reflects the deal the enacting majority struck and that courts therefore can't change it, not that it's necessarily a bargain among factions, normatively attractive or otherwise, or a fair compromise, or that it wasn't drafted by high-handed lobbyists. The Manning article you link to, for example, just says that (apologies for the weird spacing, I'm copying from the article) "second-generation textualism depends on the relatively modest empirical assumption that when the text of a statute is clear but fits awkwardly with its purpose, its unusual shape *may* reflect compromise rather than inadvertence" (emphasis in original).

Posted by: Asher Steinberg | Jun 25, 2017 11:02:13 PM

Asher, I might very well be wrong -- I just do not keep up with things the way I did before I spent all of my time in China -- but my impression is that the old public-choice based theory of textualism, associated with Shepsle's "Congress is a 'They,' Not an 'It'" piece and the more general notion of cycling, has long been dead as a plausible theory justifying textualism. It is now conventional wisdom (I think) that structure-induced equilibria make legislative outcomes predictable, stable, and "rational" (in the sense of reflecting the views of the legislative leadership). Even the good old Powell Amendment turns out to be less of a cycling story than Riker led us all to believe. (Powell was not so naive, after all, as to introduce a self-defeating amendment).

Posted by: Rick Hills | Jun 26, 2017 7:08:45 AM

Whether or not one is a textualist, being able to deal competently with issues of ordinary textual meaning is an essential part of legal interpretation; every current interpretive theory says to start with the language. But Rick doesn't seem to have much respect for that part of the process, describing various aspects of it as "arcana." He appears to be more comfortable with concepts such as public-choice theory, cycling, and structure-based equilibria, which would probably be regarded by practicing lawyers and judges as being at least as arcane.

I suspect that in this respect, Rick's views are representative of the legal academy, or at least of that part of it that concerns itself with legal interpretation. And if I'm correct, this fact helps to explain why, when it comes to analyzing textual issues such as semantics and grammar, law professors tend not to know what they're doing.

Posted by: Neal Goldfarb | Jun 26, 2017 10:39:54 PM

Neal Goldfarb writes: "But Rick doesn't seem to have much respect for that part of the process....".

Good grief, Neal, where in the world did you get that idea? I love textualist arcana, and I enjoy writing briefs that focus on text. (I just supplied a legal opinion to City Council that canvassed a raft of textual canons, I hope effectively). My students in statutory interpretation will be my witness that I bore them silly with Hayes (last antecedent) Ali v Bureau of Prisons (ejusdem generis/noscitur a sociis), and the like. They get literally dozens of real-life cases in which they have to make textual arguments, brought straight from some of the city and federal agencies' finest and most experienced lawyers. And I even gave them LAWnLinguistics' analysis of Lockhart, along with Asher Steinberg's.

"Arcana" in my lexicon (and in ordinary usage) is not an insult: It means simply "secrets" or "mysteries," as in the mysteries of a craft. My only point is that these mysteries might be better suited for laws written in a collaborative way than laws presented for a simple up-or-down vote.

You should feel free to challenge that claim, but there's no need for the jeremiad against academics -- especially when this particular academic is really on your side as far as textual argument is concerned.

Posted by: Rick Hills | Jun 26, 2017 10:59:25 PM

In the immortal words of Homer Simpson, D'oh! My apologies for jumping to a mistaken conclusion, and for hijacking the comment thread. And while I'm at it, my apologies to any other lawprofs who I've unfairly tarred. If you think it's appropriate to delete my comment, I won't object.

And next time I'm in New York, or you're in D.C., how about I buy you a drink?

Posted by: Neal Goldfarb | Jun 27, 2017 12:42:48 AM

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