Textualism and Context (Especially as to Terms of Art):

A reader faults my "free state" analysis on these grounds:

The author introduces extrinsic evidence when the document is internally consistent and clear within its 4 corners.

Some of the extrinsic evidence comes from unrelated political systems and writers unfamiliar with the new governing scheme created by the Framers. Extrinsic evidence supporting the internally consistent definition, such as lawmakers' floor statements, are not considered; indeed, only extrinsic sources supporting the author's definition definition are discussed at length.

He then goes on to elaborate,

I should have said, "the document is internally consistent and thus clear within its 4 corners." That is, one can get a clear definition of "state" on context alone without extrinsic evidence.

Assume you have no dictionary and have no idea what "state" means. You read the Constitution and Bill of Rights, and for 116 out of 116 times the documents use the word "state," context alone indicates that "state" means one of the 50 recognized jurisdictions and not the District. You would judge, based from this text/context, that the "state" in the 2d Amend referred to the same. Of course, EV is correct that one still needs a dictionary and/or understanding of English for the remaining words, but these sources aren't typically considered extrinsic evidence. (perhaps because dictinaries and language knowledge offer every definition of a word, whereas typical extrinsic evidence does not)

This the goal of textualism, yes? That all words in a document have clear meaning based on the text of the document alone, coupled with a knowledge of the language of the text? (of course even textualism allows departing from a dictionary definition where the text specifically redefines a word)

The political branches ought to have incentives to observe textualist rules. Even assuming that the change from "country" to "state" was stylistic, to rely on extrinsic evidence to correct the textualist mistake eliminates this incentive. It permits Congress to pass whatever ambiguous, permissive language will get a majority, improperly delegating to the courts the determination of what the law ought to be.

"Textualism" is a useful label, and textualists do care about the text. But I know of no textualist who thinks that we should ignore context, and in particular the possibility that a particular textual provision was a legal term of art at the time the law was enacted. I think such an entirely acontextual textualism (perhaps we might think of it as "literalism," though even that assumes the conclusion about what the text literally means) is senseless for reasons I've mentioned in other posts in this chain. But in any event it is no textualism I've ever heard legal scholars advocate.

Let's begin with a simple example: How would and should a textualist deal with the Double Jeopardy Clause, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"? Should he say that it applies only to subsequent prosecutions where either the death penalty or dismemberment is at stake? (Does it perhaps apply chiefly to those soldiers who are "quartered in any house" with the owner's consent?) Or should he consider the possibility that "life or limb" is a legal term of art that doesn't mean what "life or limb" normally would?

Likewise, it turns out that the Constitution and the Bill of Rights do not always use "State" to mean "state of the union," even setting aside the Second Amendment: Two clauses of the constitution refer to "foreign State." Would we say that, because nearly all occurrences of "State" mean "one of the United States" or a "member state of a union," the "foreign State" provisions must refer to foreign members of the United States, or perhaps foreign semi-sovereigns that are part of some broader confederacy -- so that, for instance, federal officials couldn't accept offices or titles from the Swiss cantons (as states in a union), but could accept them from Japan (which is not a state in a union)? Or would we recognize that the term "State" in the phrase "foreign State" means something different from "State" in other contexts?

"Free State" is much like this. My article offers what I think is strong evidence that "free State" meant "nondespotically governed country." Blackstone used it this way. Montesquieu used it this way. Cato's Letters used it this way. Hume's Essays used it this way. Many other writers that the Framers read used it, almost exclusively this way. There's thus very good reason to think that when Americans who were raised on those works wrote or read that phrase, they understood it as precisely the same term of art, just as they understood "life or limb" as a term of art or "Suits at common law" as a term of art. No textualist I know of would ignore such evidence, just to give future Congresses an incentive to avoid all legal terms of art (something that would be a pretty hopeless cause in any event).

M Riley (mail):
This does not change your argument but is just a point of interest. In 1598 King James of Scotland (later James I of England) wrote a book "The True Law of Free Monarchies" in which "free" meant that the king was free to levy taxes at will. "Free" refers to the powers of government, not to the state of the governed. The issue is discussed in a political novel of the time, John Barclay's Argenis (1621).
Just FYI.
6.16.2007 11:33am
Brian Slocum (mail):
I agree with Eugene that modern textualists purport to consider context when interpreting statutes (although they don't do so in a consistent manner). I also think that it is erroneous to believe that the same textualist methodology can be applied both constitutional and statutory interpretation. The Constitution is full of vague, standard-like provisions, such as "due process." A textualist (as opposed to originalist, for example) methodology would not be particularly helpful in interpreting such provisions (of course, such methodology would be more helpful in defining a specific work, such as "state"). In contrast, modern statutes are typically much more detailed and susceptible to textualist methodology. At the same time, one of the valuable contributions that modern textualists have made to the plain meaning approach is that textual meaning is heavily dependent on context. The different between textualists and intentionalists is that the two methodologies consider different sources when considering context. Texualists consider "objective" sources (as opposed to legislative history) such as dictionaries, background rules like canons of interpretation and similar statutes to determine how a reasonable person would interpret the statute.
6.16.2007 12:32pm
Chris 24601 (mail):
I think I'm a textualist, but what I think is paramount--the sense historically expressed by constitutional (or statutory) language--always depends on context.
6.16.2007 2:37pm
Been there:
Textualist doesn't have to mean "literalist."

A friend used a good example from the Eighth Amendment. The language of the Eighth Amendment seems "clear" on its face. But if the government can't inflict "cruel and unusual punishments" (emphasis added) does that mean it can inflict punishments that are unusual, but not cruel? Some of the stigmatizing punishment cases (wearing the "I'm a thief" sandwich boards) come to mind.

Or more to the point, if it meant that government could inflict cruel punishment as long as it isn't unusual, the government could just draw and quarter all murderers. As long as it's widespread, it may be cruel but not unusual.
6.18.2007 2:30pm
Well by now the conversation has staled beyond its initial blandness. Nonetheless, thanks to Professor Volokh for offering the forum and his thoughts.

I have one final rejoinder. (EV is welcome to the last word though) The textualist maxim I'm championing here, that identical words used in different parts of the same document have the same meeting, is a rule of degree. When an ambiguous term is used sparingly throughout the document ("life or limb"), the maxim doesn't have much force. When a term is used often ("state"), the maxim is much more applicable. Further, when the term is used consistently throughout its heavy use, there's even more weight that any instance of the term applies it in that same manner. Lastly, when the term is one of art that is largely defined by that document, as the states are delineated in the Constitution, it has even greater force.

My point about encouraging legislation that is susceptible to textualism could not be stronger here. If Congress meant "state" to mean one of the 50 states not including the District, they followed the maxim to a tee. If Congress meant "state" to mean the entire country, they could hardly have more flagrantly violated the maxim. Given that degree, I think the textualist is bound to adopt the overwhelmingly internally consistent definition of "state" - that it excludes the District.

I think my reading strongly favors an individual right interpretation, as Professor Volokh noted several collective right courts have interpreted "state" to mean entire country, which I would not allow. (I think my reading also weighs for incorporation of the 2d Amend against the states, although not under the fundamental rights test per se). It is an unhappy fact that my reading does not give explicit 2d Amend rights to the District. Yet even this gives strong incentives to legislatively amend "free state" to "free country" and have a more textualist-friendly Constitution.

Just as an aside - I think a better argument against my position is that the use of "state" preceded by a non-article modifyer ("least populous state," "free state," "foreign state," etc.) implies a different definition of state because the context shows "state" to mean different things when so preceded (state of the union, foreign country, now ambiguous, etc.). But even looking at non-article-preceded "state" as different, context would not imply that the 2d Amend "free state" means the entire country including the District, because the non-article-preceded "state" means that nowhere else. (And there is the outlier "state of the union" that uses "state" in a totally different context, but one could adopt the consistent meaning even here without untoward judicial results, as its a fairly unjusticiable issue)
6.19.2007 12:18am