Textualism Archives - Columbia Law Review

Introduction How does one choose a theory of interpretation? People confronted with that choice—from judges to legislators to ordinary citizens—face an embarrassment of riches. There is no shortage of theories of legal inter-pretation, with their corresponding favored methods for reading statutes or the Constitution: in statutory interpretation, pragmatism, textualism, intentionalism, and purposivism; and in constitutional interpretation, originalism in its many variants, moral readings, common law con-stitutionalism, and common good constitutionalism, just to name a few.[footnote]See generally Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (1997) [hereinafter Dworkin, Freedom’s Law] (arguing for a “moral reading” of the Constitution); Richard Ekins, The Nature of Legislative Intent (2012) [hereinafter Ekins, Legislative Intent] (offering a defense of intentionalism based on a theory of legislation); William N. Eskridge, Jr., Dynamic Statutory Interpretation (1994) (defending dynamic statutory interpretation); David A. Strauss, The Living Constitution (2010) (arguing for common law constitutionalism); Adrian Vermeule, Common Good Constitutionalism (2022) (arguing for common good constitutionalism); Conor Casey & Adrian Vermeule, Myths of Common Good Constitutionalism, 45 Harv. J.L. & Pub. Pol’y 103 (2022) (same); Felipe Jiménez, Minimalist Textualism, Seton Hall L. Rev. (forthcoming), https://ssrn.com/abstract=4780572 [https://perma.cc/6NTE-JVSB] [hereinafter Jiménez, Minimalist Textualism] (explaining minimalist textualism); John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1 (2001) (defending textualism); John F. Manning, What Divides Textualists From Purposivists?, 106 Colum. L. Rev. 70 (2006) (analyzing the nuanced differences between modern textualism and purposivism); Walter Benn Michaels, A Defense of Old Originalism, 31 W. New Eng. L. Rev. 21 (2009) (arguing for original intentions originalism); Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347 (2005) (discussing differences between textualism and intentionalism); Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1 (2015) (arguing for the “fixation thesis,” a core aspect of originalism); Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243 (2019) (discussing the difference between originalism and other approaches); Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B.U. L. Rev. 1953 (2021) (describing original public meaning originalism).[/footnote] Any person tasked with applying a statute or the Constitution[footnote]This Article focuses on statutory and constitutional interpretation because these are the main concerns of scholarship on interpretive choice. See infra Part I. This Article can’t address the interpretation of other sources. For an exposition of interpretive alternatives on precedent, see generally Craig Green, Turning the Kaleidoscope: Toward a Theory of Interpreting Precedents, 94 N.C. L. Rev. 379 (2016) (explaining how the different methods of interpreting precedents can lead to different interpretive results). On the interpretation of private instruments, see Kent Greenawalt, Legal Interpretation: Perspectives From Other Disciplines and Private Texts 217–328 (2010) [hereinafter Greenawalt, Legal Interpretation] (discussing the law of agency, will interpretation, the law of contracts, and the doctrine of cy pres).[/footnote] has to settle—with more or less deliberation and awareness—on a way of interpreting it. If one is to apply a statute or the Constitution, one will interpret it, and in interpreting it, one will be, in fact, choosing a method of interpretation.[footnote]See Cass R. Sunstein, How to Interpret the Constitution 21 (2023) [hereinafter Sunstein, How to Interpret the Constitution] (“[T]o understand what the Constitution means, . . . [w]e also need a theory of constitutional interpretation. This is so whether or not we have such a theory explicitly in mind.”). Professor Cass Sunstein speaks of interpretive choice as a choice between “theories.” This Article refers to “methods” instead, as that word best conveys a proposal for action: a way in which an agent should act (“interpret”) in a specific context. A theory may be purely explanatory and entail no proposal for action or may thematize a single aspect of interpretation, thus failing to specify a full alternative for action. In interpretive choice, theories are not assessed for their own sake but as entailing a proposal for the way someone should interpret a legal norm—that is, as proposing a “method.” This is probably what Sunstein has in mind when speaking of “theories,” so the difference is only terminological.[/footnote] Before choice, though, there should be deliberation: a weighing of reasons for and against one method or another. And before weighing the relevant reasons, one needs to know which reasons should count. Which reasons should count? Debates on interpretation are marred by a disordered pluralism. Authors offer reasons of different kinds for their preferred methods of interpretation, which this Article classifies as conceptual, linguistic, normative, institutional, legal, and theory reasons.[footnote]See infra Part I.[/footnote] Yet, as Professor Mark Greenberg notes, “arguments for particular theories of legal interpretation are typically offered without any account of why these arguments are the relevant ones.”[footnote]Mark Greenberg, Legal Interpretation, Stan. Encyc. Phil. (Edward N. Zalta ed., July 7, 2021), https://plato.stanford.edu/entries/legal-interpretation/ [https://perma.cc/2W2W-R9TV] [hereinafter Greenberg, Legal Interpretation]. For Professor Mark Greenberg, “It is unusual for theorists to explicitly address the question of how to choose between competing theories of interpretation.” Id. Greenberg notes that his own works, as well as works by Professors Scott Shapiro and Richard H. Fallon Jr. serve as exceptions. See Scott Shapiro, Legality 1–35, 331–88 (2011) (addressing meta-interpretive debates emphasizing the relevance of a system’s economy of trust); Richard H. Fallon, Jr., How to Choose a Constitutional Theory, 87 Calif. L. Rev. 535, 537–39 (1999) [hereinafter Fallon, How to Choose a Constitutional Theory] (“The written Constitution, by itself, cannot determine the correctness of any particular theory of constitutional interpretation. Selection must reflect a judgment about which theory would yield the best outcomes, as measured against relevant criteria.”); Mark Greenberg, Response, What Makes a Method of Interpretation Correct? Legal Standards vs. Fundamental Determinants, 130 Harv. L. Rev. Forum 105, 105–07 (2017), https://harvardlawreview.org/wp-content/uploads/2017/02/vol130_Greenberg.pdf [https://perma.cc/FT54-KRYS] [hereinafter Greenberg, Legal Standards vs. Fundamental Determinants] (“The more general point is that what makes a method of legal interpretation correct is that it accurately identifies the law. Consequently, . . . answers to questions about legal interpretation depend on how the content of the law is determined at a more fundamental level than legal standards.”). For other works addressing that question, see generally Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason 352–70 (2009) [hereinafter Raz, Authority and Interpretation] (arguing that constitutional interpretation weighs reasons for continuity with reasons for change in the law); Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 1 (2006) [hereinafter Vermeule, Judging Under Uncertainty] (“[J]udges should (1) follow the clear and specific meaning of legal texts, where those texts have clear and specific meanings; and (2) defer to the interpretations offered by legislatures and agencies, where legal texts lack clear and specific meanings.”); Evan D. Bernick, Eliminating Constitutional Law, 67 San Diego L. Rev. 1, 5 (2022) (discussing positivist arguments for originalism); Andrew Coan, The Foundations of Constitutional Theory, 2017 Wis. L. Rev. 833, 835–36 (considering varieties of constitutional interpretation and their foundations); Richard H. Fallon, Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1238–39 (2015) [hereinafter Fallon, Meaning of Legal Meaning] (addressing interpretive choice in terms of a choice of legal meaning); Mark Greenberg, Legal Interpretation and Natural Law, 89 Fordham L. Rev. 109, 109–10 (2020) [hereinafter Greenberg, Natural Law] (“Behind the familiar question of what method of interpretation is the right one lies a more fundamental question: what does legal interpretation, by its nature, seek? . . . [R]oughly speaking, legal interpretation seeks the contribution that statutory and constitutional provisions make to the content of the law.”); Adrian Vermeule, Interpretive Choice, 75 N.Y.U. L. Rev. 74, 78 (2000) [hereinafter Vermeule, Interpretive Choice] (analyzing how “[v]arious techniques and strategies for reasoning under uncertainty, strategies that are well known in decision theory, political science, philosophy, and rhetoric, can fruitfully be applied to the judicial choice of statutory interpretation doctrine” (footnote omitted)); Greenberg, Legal Interpretation, supra (“But there is a more fundamental question that has to be addressed in order to make progress on the question of which method of legal interpretation is correct.”). Sunstein has contributed many writings to this literature. See infra note 93. Other works address this choice in terms of constitutional decisionmaking rather than interpretive choice. See generally Andrew Jordan, Constitutional Anti-Theory, 107 Geo. L.J. 1515, 1517 (2019) [hereinafter Jordan, Constitutional Anti-Theory] (“[C]onstitutional decisionmaking is just a species of practical reasoning.”); Richard A. Primus, When Should Original Meanings Matter?, 107 Mich. L. Rev. 165, 167–68 (2008) (“Different methods of decisionmaking have different virtues, and decisionmakers should always ask whether the virtues of a given technique have purchase in the particular case to be decided.”).[/footnote] This Article offers such an account. It undertakes a systematic assessment of the reasons offered for methods of interpretation. The Article claims that normative reasons and only normative reasons can ultimately justify interpretive choice. This is the “normative choice thesis.” This means that debates on interpretation should be settled ultimately by reference to things such as which method of interpretation leads to more just outcomes, is most consistent with the rule of law, leads to better consequences, or best satisfies some other value. It also means that reasons referring to, for example, what counts as interpretation, or to the nature of interpretation or of law, can neither constrain nor justify interpretive choice. This entails an account of interpretive choice. On this account, interpretive choice is not constrained by what counts as interpretation or by any other non-normative consideration. The normative choice thesis has practical implications. One of them is that interpretive choice is contingent . Interpretive choice should track the balance of normative reasons, which can always change as circumstances change—from case to case, jurisdiction to jurisdiction, institution to institution, area of law to area of law, etc. As a result, it is not reasonable to commit to a single method of interpretation for all situations and institutional roles.[footnote]For views that different circumstances may require different methods of interpretation, see Fallon, Meaning of Legal Meaning, supra note 5, at 1303 (defending “a relatively case-by-case approach to selecting among otherwise legally and linguistically plausible referents for claims of legal meaning”); Jordan, Constitutional Anti-Theory, supra note 5, at 1534–38 (offering a comprehensive account of how constitutional decisionmaking is context-dependent); Primus, supra note 5, at 221 (arguing that “[c]onstitutional decisionmakers should evaluate the propriety of decisionmaking methods with attention to the differences between different kinds of cases, not for the enterprise of constitutional law as a whole”); Bill Watson, What Are We Debating When We Debate Legal Interpretation?, B.U. L. Rev. (forthcoming) (manuscript at 46–47) (on file with the Columbia Law Review ) (arguing against “monolithic theories that claim to apply across the board” based on the Hartian Positivistic idea that interpretation is “remedial”—it takes place when the law “runs out”). Part III draws on these views to offer a focused engagement with the practice of committing to a method of interpretation in light of the account of interpretive choice defended here and draws some implications to assess the relevance of a method’s origins in its justification, in light of debates on originalism. It also articulates the burdens that this entails for arguments for and against methods of interpretation. See infra section III.C.[/footnote] Thus, the normative choice thesis supports arguments for a limited, context-dependent, and perhaps sometimes even case-by-case[footnote]Though not necessarily case by case. See infra section III.C.1.[/footnote] determination of interpretive approach.[footnote]See infra section III.C.[/footnote] By the same token, interpretation is unstable : Nothing guarantees that a legal provision should always be interpreted in the same way.[footnote]See infra section III.D.[/footnote] This challenges some well-established features of our legal and political discourse. It should unsettle the practice of judges, lawyers, and academics of self-identifying according to their views on constitutional or statutory interpretation (“I’m an originalist”, “I’m a living constitutionalist”).[footnote]See infra section III.C.3.[/footnote] The normative choice thesis vindicates the “faint-hearted,”[footnote]The term is taken from Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989) [hereinafter Scalia, Originalism: The Lesser Evil] (“I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging.”).[/footnote] as well as judicial inconsistency in interpretation[footnote]See infra section III.C.3.[/footnote]—a behavior usually criticized.[footnote]E.g., Randy E. Barnett, Scalia’s Infidelity: A Critique of “Faint-Hearted” Originalism, 75 U. Cin. L. Rev. 7, 13 (2006) [hereinafter Barnett, Critique of “Faint-Hearted” Originalism].[/footnote] Awareness of the contingency of interpretive choice creates a burden for arguments for methods of interpretation: they must either make explicit the (contingent) circumstances under which the method is expected to apply (which institution, under what circumstances, etc.) or offer an argument for the universal application of the method.[footnote]See infra section III.C; Conclusion. Contingency and instability aren’t the only consequences that this Article explores. See infra Part III.[/footnote] This is an uncompromising view. While rarely the main focus of attention, the idea that normative reasons play a crucial role in justifying methods of interpretation resonates with many theorists.[footnote]See, e.g., Randy E. Barnett, Getting Normative: The Role of Natural Rights in Constitutional Adjudication, 12 Const. Comment. 93, 112 (1995) (affirming that “[o]ur choice among interpretations as well as interpretive methods is, then, a normative one”); Randy E. Barnett, The Gravitational Force of Originalism, 82 Fordham L. Rev. 411, 417 (2013) (explaining that while “original public meaning is an empirically objective fact, . . . the New Originalism does also make a normative claim, and it is this: the original meaning of the text provides the law that legal decisionmakers are bound by or ought to follow”); Tara Leigh Grove, Foreword: Testing Textualism’s “Ordinary Meaning”, 90 Geo. Wash. L. Rev. 1053, 1073 (2022) [hereinafter Grove, Testing Textualism] (“[D]ebates over interpretive method . . . depend largely on normative considerations, not an empirical investigation.”); Walter Benn Michaels, Using a Firearm, Using a Word: What Interpretation Just Is, 23 J. Contemp. Legal Issues 143, 144, 149 (2021) [hereinafter Michaels, Using a Firearm] (arguing that “intentionalism is just what interpretation is” but also that “questions like whether we should produce and then follow constructs like the original public meaning are entirely normative”); Jeffrey A. Pojanowski & Kevin C. Walsh, Enduring Originalism, 105 Geo. L. J. 97, 98 (2016) [hereinafter Pojanowski & Walsh, Enduring Originalism] (holding that “a positive-law argument for constitutional originalism must also have firm conceptual and normative grounds”). Note that in all the cited texts (but the first), either the role of normative reasons is qualified or the acknowledgment of their role comes accompanied by an assertion suggesting some role for non-normative reasons. This is not to suggest that there is a contradiction in any of these texts, but only that there is a need for clarifying the role of normative and non-normative reasons in interpretive choice, as this Article does.[/footnote] But works on interpretation usually don’t explain whether non-normative reasons—which also often feature in arguments for theories of interpretation[footnote]See infra sections I.A–.B, .D–.F; see also Jiménez, Minimalist Textualism, supra note 1, at 55 (arguing that “many textualists” acknowledge that “theories of statutory interpretation . . . need to be defended on normative grounds,” but that “non-normative theories of statutory interpretation . . . play an important role”).[/footnote]—play a role in interpretive choice. It’s legitimate for writings on interpretation to bracket the question of what reasons ultimately matter for interpretive choice. Addressing this question is the task of a theory of interpretive choice. But the normative choice thesis seems, if anything, more controversial when read in contrast with prominent works on interpretive choice. Some authors flatly deny that there is such a thing as interpretive choice[footnote]See, e.g., Richard Ekins, Interpretive Choice in Statutory Interpretation, 59 Am. J. Juris. 1, 2 (2014) (“[W]hile there is scope for reasonable statutory interpretation to vary from system to system, the scope of variation is sharply limited.”).[/footnote] or that normative reasons play a role in it.[footnote]See Donald Drakeman, Consequentialism and the Limits of Interpretation, 9 Jurisprudence 300 (2017) (criticizing Sunstein’s view that interpretation is not settled by the meaning of interpretation); Richard Ekins, Objects of Interpretation, 32 Const. Comment. 1 (2017) [hereinafter Ekins, Objects of Interpretation] (same); see also infra section II.B.1.i.[/footnote] And even the groundbreaking theories of Professors Cass Sunstein and Richard Fallon[footnote]E.g., Sunstein, How to Interpret the Constitution, supra note 3; Fallon, Meaning of Legal Meaning, supra note 5.[/footnote]—which make the strongest cases for the role of normative reasons in interpretive choice—allow for some independent role for non-normative reasons, such as those concerning the concept of interpretation and the nature of language.[footnote]See infra section II.B.1.[/footnote] They should make no such concession.[footnote]Professor Andrew Jordan’s important work offers an uncompromisingly normative account of “constitutional decisionmaking” at the level of theory, building on the work of Richard Primus. Jordan, Constitutional Anti-Theory, supra note 5; Primus, supra note 5. It also derives relevant consequences from the normative nature of legal decisionmaking, such as its context-dependency. See supra note 6 and accompanying text; infra note 294 and accompanying text. While drawing from these illuminating works, this Article departs from them in framing the issue as one concerning interpretation rather than (constitutional) “decisionmaking,” and thus addresses a range of questions concerning interpretation proper, including the nature of interpretive choice and the role of non-normative reasons for interpretive choice. Section II.D.2 explores these differences.[/footnote] Authors such as Sunstein, Fallon, and Vermeule made crucial contributions in reframing debates on interpretation as concerning not what true interpretation is, but rather a choice: the choice of a method of interpretation by a particular agent (typically a judge) in engaging in a specific task.[footnote]See infra section II.B.1. Professor Adrian Vermeule’s early work frames debates on interpretation as a matter of choice, the object of that choice being a different one than that of subsequent literature: strategies for implementing an approach to interpretation rather than the approaches themselves (originalism, textualism, etc.). See infra note 78. This Article focuses on Sunstein and Fallon’s work for the reasons explained infra note 92 and accompanying text, and it engages with Vermeule’s important work infra sections I.E and II.C.4.[/footnote] The normative choice thesis entails an account of this choice—interpretive choice. If only normative reasons justify alternatives for interpretive choice, then interpretive choice can’t be constrained by non-normative reasons, including by reasons regarding what counts as interpretation. But the view defended here doesn’t entail that theories of interpretation don’t matter, or that it’s impossible to draw the line between what is and what isn’t interpretation. It does entail, though, something about the significance of this line-drawing: It has none for the practical choices of actual judges, legislators, administrators, or citizens regarding how they engage with the law.[footnote]See infra section II.C.1.b.[/footnote] The defense of the normative choice thesis explains why this should be so.[footnote]See infra sections II.A–.C. At the same time, even for a normative theory of interpretive choice, there are good reasons to frame the inquiry in terms of “interpretation” and “interpretive choice.” See infra sections II.D.1–.2.[/footnote] It may be useful to offer some working definitions here.[footnote]Below they will be justified in greater detail. See infra section II.D.1.[/footnote] “Interpretation” here means the activity of determining the legal content of legal materials (for example, a statute or a constitution).[footnote]Referring to “the” legal content does not rule out the possibility of multiple meanings. See Ryan D. Doerfler, Can a Statute Have More Than One Meaning?, 94 N.Y.U. L. Rev. 213, 228–42 (2019) (defending the possibility of multiple meanings of a single provision). Multiple meanings could also be a function of the contingency and instability of interpretive choice. See infra sections III.C–.D.[/footnote] This broad definition is intended to include different theories of interpretation.[footnote]Other authors use a similarly broad notion. See Greenawalt, Legal Interpretation, supra note 2, at 13 (employing “a broad sense of interpretation that includes all efforts to discern meaning and to determine particular applications that depend on that meaning”); Kent Greenawalt, Constitutional and Statutory Interpretation, in Oxford Handbook of Jurisprudence & Philosophy of Law 268, 269 (Jules L. Coleman, Kenneth Einar Himmas & Scott J. Shapiro eds., 2004) (taking an “inclusive approach” to legal interpretation); William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1082 (2017) [hereinafter Baude & Sachs, The Law of Interpretation] (“‘[I]nterpretation’ determines what a particular instrument ‘means’ in our legal system.”). For other academic or practical purposes, it may be useful to have a narrower concept of interpretation. See, e.g., Timothy Endicott, Legal Interpretation, in The Routledge Companion to the Philosophy of Law 109, 109 (Andrei Marmor ed., 2012) [hereinafter Endicott, Legal Interpretation] (“[N]o need for interpretation arises if no question arises as to the meaning of an object.”); Watson, supra note 6, at 32–42 (defending a “remedial” account of interpretation); infra section II.D.3 (discussing writings on the interpretation–construction distinction).[/footnote] What matters in practice are the alternatives for choice and action, not how they are categorized. “Methods of interpretation” are precisely such alternatives regarding what agents could do in determining the meaning of legal materials. Methods of interpretation may go beyond what counts as “interpretation” for a given theory, or for any theory for that matter.[footnote]Then why call them methods of “interpretation”? Because they are all alternatives in the same choice, one which—on account of including as typical and prominent alternatives what are usually understood as forms of interpretation—can be rightly characterized as concerning interpretation. An alternative would be to say that alternatives for interpretive choice include things that are methods of interpretation and things that aren’t, and thus use a narrower concept of methods of interpretation. The latter terminology is more cumbersome and, more importantly, it would obscure what this Article aims to underscore: that all these alternatives—whether they count as forms of “interpretation” or not—are alternatives for the same choice, regardless of conceptual line drawing. See infra sections II.D.1–.2.[/footnote] “Interpretive choice” is a choice of methods of interpretation. The Article proceeds as follows: Part I surveys the different kinds of reasons that feature in debates about methods of interpretation: conceptual, linguistic, normative, institutional, legal, and theory reasons. It also introduces the distinction between “independent” and “subordinate” reasons. Section II.A introduces the normative choice thesis. The normative choice thesis entails a positive thesis (that normative reasons matter for interpretive choice) and a negative thesis (that non-normative reasons don’t matter for interpretive choice). Section II.B then makes the case for the positive thesis. Authors who defend the role of normative reasons in interpretive choice adopt a “residual” approach: The role of normative reasons is a function of other reasons (e.g., conceptual or linguistic) not fully determining interpretive choice. This Article instead defends another approach: Normative reasons matter to interpretive choice because of the practical nature of interpretive choice. It’s not that non-normative reasons don’t fully determine interpretive choice—it’s that they aren’t pertinent to interpretive choice. Section II.C develops this negative thesis through a systematic assessment of the kinds of reasons surveyed in Part I, showing why each kind of non-normative reason can’t justify or constrain interpretive choice, and how they could feature in other ways in deliberation on interpretive choice. This justifies the normative choice thesis. The normative choice thesis entails an account of interpretive choice. Section II.D articulates this account and explains how theories of interpretation and interpretive choice interact. Part III explains the consequences of the normative choice thesis: that normative reasons are sufficient to justify and challenge interpretive choice (III.A), that interpretive choice depends on a variety of normative reasons (III.B), that it is always contingent (III.C), and that interpretation is unstable (III.D).

Textualism

REASONS FOR INTERPRETATION

THE INTERNATIONAL LAW ORIGINS OF AMERICAN FEDERALISM