Textualism's Political Morality.

• Author: Rao, Neomi

INTRODUCTION

My lecture is about textualism's political morality. Let me begin with a parable, courtesy of David Foster Wallace:

There are these two young fish swimming along, and they happen to meet an older fish swimming the other way, who nods at them and says, "Morning, boys. How's the water?" And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes, "What the hell is water?" (1) Today I'd like to talk about the "water" that textualists, perhaps unconsciously, swim in.

Specifically, my lecture will explore the political morality that undergirds and informs a textualist approach to statutory interpretation. I will endeavor to explain why formal approaches to legal interpretation, such as textualism, are an outgrowth of political morality and how they carry political morality into practice.

This way of thinking about textualism may seem surprising. After all, textualism is a kind of formalism, and it generally draws a sharp line between the law's objective meaning and the judge's moral preferences. Textualists hold fast to the principle that the law is the words enacted by the people's democratically elected representatives. It follows that in deciding individual cases, judges must give effect to the law as it is, not as they believe it should be. This textualist approach is often juxtaposed with methods of interpretation that rely on the judge's abstract normative values about justice or fairness or that seek to update statutes in accordance with evolving social or political norms. I am wholeheartedly on the textualist side of these debates.

But the familiar defense of textualism sells it short. This lecture aims to identify the rich moral foundations of a text-based approach to interpreting statutes. (2)

I want to make two basic points. First. I want to defend textualism from the vantage point of political morality. Properly understood, textualism follows naturally from the moral commitments at the heart of our constitutional system of government.

Understanding textualism from this perspective is especially timely in light of recent criticisms of formal, text-based methods of interpretation. For instance, a wave of post-liberal scholars, such as Adrian Vermeule, have suggested that laws should be interpreted to promote the "common good." (3) They claim textualism is inadequate because it is indifferent to this common good. But this isn't really a new criticism. Rather, it merely reflects the familiar view that judges should give effect to certain substantive values, values that exist independently of the law. There are many variants of this view, but to name just a few: Ronald Dworkin argued that judges should act as philosophers, promoting justice understood in an abstract way; (4) William Eskridge has argued that statutes must be interpreted dynamically, in light of contemporary social and moral norms; (5) and Judge Posner maintained that judges must interpret statutes pragmatically, to promote efficient outcomes. (6)

In short, although the critics of textualism past and present disagree about the right yardstick, they all argue that judges should interpret statutes in light of principles found outside the law. They maintain that such principles will lead to "better" results than simply following the text.

But textualism isn't empty of moral content, as some of its critics would suggest. Rather, textualism is rooted in a distinctive moral commitment--a commitment to be governed by positive laws, namely the Constitution and statutes lawfully enacted by the people's representatives. We live under the rule of law, not the rule of men. The Constitution is the result of a reasoned moral choice that a society governed by law is best for social flourishing and is therefore worth defending.

My second point is that statutes are enacted within a legal tradition that subsumes political morality. Our mature and sophisticated legal tradition is built on principles of natural law, common law, and concepts rooted in the Roman law. In determining the meaning of a statute, textualists may rightly turn to these legal sources for guidance. Interpreting statutes within our legal context is part of exercising the Article III "judicial Power." (7)

Seen this way, textualists aren't indifferent to political morality in interpretation; they simply recognize that our legal tradition has translated and disciplined principles of political morality into postulates of law. A faithful textualist, therefore, must grapple not only with the words on the page, but also with the meaning of those words in the context of our legal traditions.

Those are my two basic points: fidelity to positive law is a profound moral choice, one that Americans made when ratifying the Constitution. And textualism, properly understood, incorporates fundamental principles drawn from our legal customs and foundations.

1. MORAL FOUNDATIONS OF THE POSITIVE LAW

   I begin by discussing the moral choice at the root of any system of binding positive law.

   Perhaps it will seem puzzling and counterintuitive to say that textualism includes a distinct political morality because textualists quite rightly seek to separate legal interpretation both from the partisan political fray and from the demands of morality or justice, abstractly defined. Moreover, critics of textualism and other formal methods of interpretation often emphasize that the outcomes of text-based interpretation can be unjust, unfair, inefficient, or immoral. Nontextualists frequently propose that when interpreting statutes, judges must apply some non-legal yardstick--whether it be justice, fairness, or the common good. On this view, judges should cite these values to "correct" the results of an exclusively text-based interpretation. Because textualism separates law from these abstract values, it is sometimes labeled as amoral or even immoral." (8)

   Despite these critiques, I maintain that textualism rests on a moral foundation. Focusing on the enacted law does not entail moral indifference. Rather, it respects a prior moral decision about how to resolve inevitable disagreements about the content and application of the moral law. In other words, the moral foundation of textualism is rooted in natural law ideas about reason, justice, and the good.

   Philip Hamburger learnedly details this history in Law and Judicial Duty, and I draw from his account here. Human society faces a fundamental problem: there are many good-faith disagreements about what justice requires in a particular case. The establishment of lawmaking authority and the creation of positive law provide a solution to that problem. As Professor Hamburger explains, earlier justifications for obeying the law depended on believing the law coincided with God's will, or with the natural law itself. (9) But of course there are often disagreements and confusion about what the natural law or the common good requires. To take Aquinas's example, what exact punishment does natural law require for a given crime? (10) There is no single answer.

   Furthermore, even if we were all Catholics, libertarians, utilitarians, or Marxist revolutionaries, such that we agreed on first principles, we would still inevitably disagree about how those principles cash out in any given case. Human reason is limited, and human beings are flawed. A functioning political society needs rules that everyone agrees are binding.

   The solution arrived at over time was to choose a sovereign lawmaking authority that would translate the natural law into binding positive law. (11) The justification for this authority was not that it would always choose the right answer, but rather that such lawful authority is necessary to settle disputes. (12) While individuals will necessarily disagree as to what is good, a representative government can channel these disputes into debates about legislation. Viewed in this light, the decision to adopt a system of positive law made a good deal of sense as a moral matter.

   The point of this highly condensed history is that legal doctrines don't displace morality--they implement it. At bottom, the establishment of the positive law originates in a moral decision by the people: it is part of a reasoned choice to promote a peaceful and free society by resolving disputes through the enactment of law, rather than through abstract moral debate.

   More specifically, in the United States, our constitutional...