The question for conservatism is whether 2019 will be a tougher year for James Madison and Alexis de Tocqueville than it is for Donald Trump.
Richard A. Epstein’s recent comments on textualism, while sympathetic, nonetheless advance several straw man arguments against the view. I am willing to concede they are straw man arguments invited by (some) explanations of textualism. However, textualism understood as honest reading, reading legal texts as we do other everyday texts, I think answers the ostensible limitations Epstein asserts against the view.
Epstein concludes his discussion by noting, “constitutional interpretation remains so difficult because, though we must start with a scrupulous reading of the text, the law presents innumerable cases that require judges to go beyond it.” And going beyond the text, Epstein explained earlier, “takes a theory – not merely a reference to the text . . .”
The “merely” grates, as if textualism requires reading legal text with a sort of wooden literalism. That’s no way to read any text, however, even a legal text. At least it’s no way to read a text if one wants to read it honestly.
Nonetheless, I understand the concern from which Epstein’s complaint derives. To date, for good reasons, most of the focus of the case for textualism derives from opposition to judicial decisions unhinged from the legal text. Textualist proponents often invite the conclusion they think textualism provides determinate, black and white answers to questions of legal meaning.
To be sure, textualism constrains judicial interpretation of legal texts relative to non-textualist approaches. Yet no textualist worth his or her salt suggests the approach provides determinate answers to every question one might ask of a legal text. The distinctive of textualism is that legal texts be read reasonably, that they be read honestly in light of what we know about the text.
A good part of the problem of both textualism’s friends and foes comes from thinking that reading legal texts puts us in a different interpretive world than reading other every day texts. But, mutatis mutandis, it doesn’t.
Say mom and dad take off for the weekend leaving you in charge of your younger siblings. Mom writes a list of instructions for you. Initially, that mom left you a set of written instructions means that she wants, and expects, you to follow those instructions, as opposed to throwing them away and ignoring them.
Yet mom’s instructions need not merely or constrain or limit your actions, they can also authorize actions and discretion, expanding the scope of what you might be able to do had she left no instructions at all.
Secondly, however, mom does not hold the pretense that her instructions cover every possible contingency that might arise over the weekend. She’s didn’t leave a 200 page instruction book. More than that, she never expects you to read her instructions woodenly, she expects you to read her instructions reasonably.
Most of what might come up during the weekend will be a matter of interstitial interpretation, filling in the gaps of the instructions she left. This by itself is “going beyond the text” mom left, but mom understood and anticipated you would do so. There’s nothing inconsistent with your mom drafting a set of instructions.
Similarly, the instruction, say, to “call the neighbor in case of an emergency,” outlines a process the details of which necessarily go beyond a woodenly literal reading of the text. If your little brother breaks his arm climbing a tree, telling your mother that you called the neighbor and had a pleasant conversation about the weather will not satisfy her that you followed her written instructions. Indeed, any reasonable interpretation of the instruction understands “call the neighbor” as a synecdoche. Pretending you adhered faithfully to the text by ignoring the synecdoche is not at all being faithful to the text.
What motivates Epstein’s argument is the issue of teleology and textual interpretation. Again the line I quoted from above, constitutional interpretation, Epstein writes, “takes a theory – not merely a reference to the text . . .” Epstein writes that he would posit “classical liberalism” as the theory he prefers to bring to constitutional texts when interpreting them.
I read his column to suggest his unease that textualism entails the same theoretical commitment.
Epstein comments on a recent column by Arizona Supreme Court Justice Clint Bolick. What motivates Epstein’s argument on the need to go beyond the text would seem to be not that he thinks Bolick’s textualism is too limiting, but rather Epstein thinks it’s too permissive. Bolick writes:
Textualism is not inherently a conservative or liberal philosophy. A textualist interpreting the federal or state constitutions often will reach outcomes favored by conservatives or libertarians because those constitutions are primarily freedom charters. Statutory interpretation, by contrast, often can lead to liberal outcomes given the nature of lawmaking (although a textualist will strike down statutes that violate constitutional rights or exceed constraints on legislative or executive power).
While Bolick nods that US constitutions are “freedom charters,” that’s not a full-fledged commitment to classical liberalism as the distinctive theoretical commitment of American constitutionalism. Bolick, applying his understanding of fidelity to constitutional texts, would seem willing to uphold the constitutionality of some statutes that Epstein would not.
While I think constitutional texts can indeed provide pointers to the theory motivating them (for example, the Constitution’s preamble), they don’t provide, and are not intended to provide, a full theoretical background. But they don’t have to in order to support Bolick as against Epstein. A helpful distinction to import from elsewhere might be the difference between what we might call middle-range constitutional theory versus grand political theory. I don’t have a full-fledged distinction worked out, but I’d suggest that middle-range constitutional theory at least starts with what pointers there are in the constitutional text, the Constitution’s preamble being item one on the list, but there are certainly other “tells” or pointers in the text, and reason inductively to what political theories are consistent with the text.
I take Bolick’s point, and the point that Epstein wants to contest, is most interpretive matters require recourse to middle-range constitutional theory rather than to grand theory. Bolick’s textualist judges impose modest, contingent theoretical commitments on their constitutional and legal interpretation. “Textualism is not inherently a conservative or liberal philosophy,” Bolick writes. Epstein wants less deferential textualist judges, albeit, of the right sort of classical liberal commitments. To do so Epstein wants to shrink the scope of textualist interpretation proper, and expand the role of grand theory in constitutional interpretation.