Non-Textualism and the Duck Season-Rabbit Season Dramaturgical Dyad: A Response to Professor Cass Sunstein (and others)

• Author: Seth Barrett Tillman
• Position: Associate Professor, Maynooth University School of Law and Criminology
• Pages: 523-531

Non-Textualism and the Duck Season-Rabbit

Season

†

Dramaturgical Dyad: A Response to

Professor Cass Sunstein (and others)

††

SETH BARRETT TILLMAN*

ABSTRACT

Debate regarding legal interpretation is intense. A standard critique of so-called

originalism and textualism is that such methodologies are not neutral or objective;

rather, they must implicitly rely on unstated norms or on contestable historical

claims. This critique is usually put forth by non-textualists. But their critique, that

is, the critique put forward by non-textualists, equally applies to their preferred

modes of interpretation, as it must apply to all methods of interpretation.

I amend one word from Professor Sunstein’s conclusion.

It is tempting to think that in the kinds of cases [and texts] that are of concern

here, non-textualism is a kind of lie. It might be. But it might also be an honest

mistake, a matter of sincerely thinking that you are “seeing that”[which all

others see or that which is there to be objectively seen] when you are actually

“seeing as”[which is seeing only one meaning among several potential mean-

ings which others see]. Still, it is a serious problem if a judge [or academic]

does not know that she is seeing as. If she is, in fact, seeing as, she should

explain why that is the right way to see, and if she thinks that she is seeing

that, she might see no need to offer an explanation.

1

To illustrate my point, I refer to how non-textualists have developed

Hamilton’s Federalist No. 77

2

in relation to the doctrinal debate on the unitary

theory of the executive and the scope of the President’s removal power. My pur-

pose in doing so is not to settle that substantive debate—a matter about which I have

no substantial published or settled views. Rather my purpose is methodological: it is

†Rabbit season, duck season,YOUTUBE, https://www.youtube.com/watch?v=9-k5J4RxQdE (last

accessed Jan. 6, 2021).

†† I’m Fired, Aren’t I? (The Simpsons), YOUTUBE, https://www.youtube.com/watch?v=Xlf2G0O_VY0

(last accessed Jan. 6, 2021) (at 00:15).

* Associate Professor, Maynooth University School of Law and Criminology. Scoil an Dlı

´agus na

Coireolaı

´ochta Ollscoil Mha

´Nuad. ©2022, Seth Barrett Tillman.

1. Cass R. Sunstein, Textualism and the Duck-Rabbit Illusion,11C

ALIF.L.REV.ONLINE 463, 477

(2020) (changing “textualism”to “non-textualism”), https://tinyurl.com/yxo2hc49.

2. Federalist No. 77 has an interesting publication history. The essay first appeared in The

Independent Journal on April 2, 1788, and then in The New-York Packet on April 4, 1788. What is now

Federalist No. 77 appeared originally as number 76 in the series, and it did not take its present place as

number 77 until the first collected edition (the M’Lean edition) in 1788. See 4T

HE PAPERS OF

ALEXANDER HAMILTON 638 (Harold C. Syrett ed., 1962) (editor’s note).

523