On textualism, purposiveness, and maintainability

[Written in large part nearly a year ago, but holds up well on review, so publishing it while waiting for the late-night, extra-innings, baseball game to wrap up.]

Some ponderings on what the legal scholars call textualism and purposiveness, roughly what the rest of us tend to call strict and loose constructionism. These thoughts were inspired by my class in Legal Methods, which explores, among other things, how to interpret laws. Since I’m not likely to directly return to the issue until next semester, I wanted to force myself to write this down now and think them through. It is worth noting that these are likely the least original things I’ve ever written, given how hashed over this subject has been, but they are all new to me :)

The reason why this ends up cast as a conservative v. liberal thing, typically, is (per Posner) “[liberals] think that modern legislation does not go far enough, [conservatives] think that it goes too far. Each school has developed interpretive techniques [i.e., strict and loose construction] appropriate to its political ends.” Loose construction, then, is about creating new law to fill in gaps, and in most recent political history in this country, new law has meant liberal law. If the recent conservative ascendancy continues, though, and the hypocrisy of the conservative ascendancy continues, we’ll almost certainly see conservative loose construction, and liberal strict construction. It should be interesting to see how that develops, and whether or not we see more consistency or more hypocrisy as a result.

There are a number of reasons the problem comes up:

• Some of the issues that call for loose construction are caused by Congress just plain screwing up- using language that is badly and unnecessarily imprecise. If Congress says ‘legal fees’, and then explicitly and repeatedly says in the record ‘when we say legal fees, we mean legal fees and witness fees’, then surely you would think (1) Congress could have just said in the law ‘legal fees and witness fees’ and (2) a sane court would say ‘OK, they meant legal fees and witness fees’. But I didn’t make this example up. Congress didn’t add the three words, and the Court did completely ignore what the Congress said it meant, eviscerating the clear intent of the authors of the law. That said, they’ll likely be more careful next time- so maybe it isn’t a bad thing. (See more on that below.)
• Some of the problem stems from the nature of the Congressional process- the record is inevitably incomplete, and potentially dishonest, so there are times when what Congress says publicly it wants to do, and what it agrees to write to get votes, are different. This is a legitimate problem, I believe- closed-room discussions are substantially and meaningfully less democratic than the discussion of a full body of Congress. (This is not to defend the poor state of deliberation in Congress, but merely to point out that it is even worse in commitee.) So should the courts pay attention to that? They often do.
• A third cause, and the most difficult one for the strict constructionists, is the ENGLISH99 problem- language is not standardized and not standardizable. The textualist argument explicitly presumes that there is a standardized English, which is clearly not sane.
• A fourth cause, of course, is Congressional incapacity- they just can’t anticipate all the corner cases that a law can cover. This is a deep problem for both camps to grapple with. If even in the very, very best case Congress can’t write perfect laws, how do you deal with this?

An open question for me: is the spirit maintainable? Can a system built on some mix of incompetence and fallibility (on the part of Congress) and baling wire (on the part of the Court) hold together? My current sense is that it is not holding together very well. Loose construction almost definitely produces more just short-term results, but it also clearly encourages sloppy lawmaking (at best) and undemocratic behavior (at worst) by Congress.

Given those problems, where is the balance? Is making the system more sustainable, reasonable, predictable, etc., at the cost of relatively temporary, small injustices, worth it? What if the injustices are bigger? longer-term? I am really not sure how to reasonably assess the problem, though it is clear that the current method of figuring out the problem isn’t working either- instead of a meaningful political discussion (like the one that has apparently led the EU to declare that all law should be interpreted purposively), it gets handed off to the Supreme Court justices to bicker about, with the occasional new nominee thrown in. This seems like nearly a worst-case scenario, unfortunately.

[Tangentially, I have a hunch that much of the significance of this problem is that the ur-text- the Constitution, particularly the Bill of Rights- is what provides much of the animating ‘spirit’ of American national law, and it is in many ways antiquated. If, for example, it contained a clear, simple privacy right, there would be much less need to engage in purposive interpretation when it came to Constitutional issues. We’d still have this tension when it came down to interpreting regular legislation, but inevitably legislative mistakes by the Court are less significant and easier to fix than Constitutional ones.]