Overcoming Objections to Honest Originalism

—I have suggested that one of the most compelling arguments in favor of originalism was that it demands an ethic of honest reading, one that’s identical to how I think we all try to read texts in ordinary life. In this essay I want to deal with two potential objections this view of originalism.

The first of these objections is that the justification would make hash of the scrivener’s error doctrine (relating to drafting mistakes in statutes). The second is that relying on originalist “honest readings” is inconsistent with the use of technical legal language in the Constitution. If the latter were correct, this form of originalism would be inconsistent with “language of the law” originalism articulated, most notably, by my fellow L&L columnists John O. McGinnis and Michael B. Rappaport. While my “it’s-just-reading” rationale for originalism requires no commitment to a particular form of the scrivener’s error doctrine, and takes no position on what language need to read as technical legal terms in the Constitution (or in a statute), it is also entirely consistent with robust versions of each.

Scrivener’s error doctrine is a doctrine in which a judge will recognize a statute’s text mistakenly says one thing when the legislature meant to write something else. A judge will apply the “meaning genuinely intended but inadequately expressed,” Scalia explained in a 1994 case, only when it is “absolutely clear” to a judge what the legislature meant to write. When I gave a talk at the Texas Attorney General’s office last year, one of the attorneys asked whether my “it’s-just-reading” version of originalism meant that the Scrivener’s error doctrine needed to be thrown out. That is, whatever a statute’s text said needed to be read as written, no matter how clear it might be that the text mistakenly represented what the legislature meant to write.

Scrivener’s errors, as it were, are not unique to legal texts. And the solutions we apply to these sorts of errors when reading other texts apply when reading legal texts as well.

Almost every reader at one time or another has run into “drafting” mistakes in something he or she is reading. An “and” instead of an “or,” a sentence fragment, a missing “not,” or a written “not” that should have been left out, numbers that don’t match the text (or that don’t add up properly), even missing paragraphs or pages. Some of the mistakes are obvious and easy to correct. Other mistakes are not so obvious, and we are unsure whether the author has made a mistake, or whether the author wrote something that we have yet to understand. Some mistakes are obvious, but not so easy to correct. The point is that we run across the same problem in everyday texts, and do our best to read honestly given the possibility of mistake.

Indeed, people even apply the “absolutely clear” standard when reading in everyday, non-legal circumstances. I was sitting in on an econometrics course some years back. The instructor had the class turn to one of the text’s statistical appendices. While glancing at the table I happened to note a discrepancy between the numbers for the one-tailed test and the two-tailed test in the table. The instructor wrestled mightily after class to double and triple check my claim, not wishing to attribute error if it truly did not exist. (And whether the table was in fact in error had implications for students and researchers using the table; if incorrect, they would derive wrong conclusions for their statistical tests.)

More trivially, putting Lego models together with my children would occasionally require judgment calls about whether the written instructions accurately reflected the actual set of pieces included with the Lego set. We would follow the instructions, but something would seem amiss. We would have one piece too many, or would seem to be missing a piece. We would check, and recheck, the instructions, and the work we had already done. We needed to be “absolutely clear” the instructions were in error before ignoring them.

The point is that reading honestly does not entail reading text naively, whether reading a legal text, a statistical table, or the instructions to put together a toy. Reading honestly sometimes means we recognize the text might contain an error, and we do our best, when possible, to understand the text despite the error.

Similarly, the argument that we can read statutes (or constitutions) in essentially the same way that we read other texts does not require one to commit to construing legal texts as though they were drafted using ordinary language only. In the course of ordinary life many of us read specialized or technical literature in which some words have specialized or technical meanings. Our goal remains the same: to read honestly. This means we need to discern when certain words are used in a specialized way, when they aren’t, and what those specialized meanings might be. It’s not always clear. But, again, that legal texts might employ technical or specialized legal language does not mean that we need to read with a different goal than we read other texts.