metonymy4u

…here’s my proof that Scalia’s textualism is a bunch o’ hooey:

From one perspective the constitutional doctrine called textualism makes sense. Textualism is the doctrine that statutes should be interpreted and applied solely as they would have been understood by a competent user of the original language at the time they were written. Interpretations which make use of other data sources – committee reports of the legislative body that drafted the statute, or evolving cultural standards as perceived by the jurist—are considered contaminating materials that subvert the democratic process. The reasoning goes that the statutory language was reached in a democratic process of compromise, worked out by representatives elected by the people. To re-interpret such language based on extra legal sources would be to subvert the democratic process of debate and compromise, since it substitutes the jurist’s judgment for the legislator’s, that is, the people’s. The proper remedy for an unjust or ineffective law is not to re-interpret it, but re-write it. And only the legislature can do this. In this way, so the textualist argument goes, the democratic process of republican debate and compromise is preserved.

Yet this entire line of argument rests on one faulty premise: that the US judiciary is not itself a part of representative government. Our constitutional democracy provides for a clear and ordered way for the people to choose their jurists, just as much as we choose our executives and our legislators. Jurists are duly appointed according to the principles of our constitutional system, through a mechanism which ensures a republican process. And in fact they can be removed by the same system if they abrogate their constitutional duties. So if I were to pluck a feather from the textualist’s hat, I might argue that in fact our constitution outlines a very clear mechanism for linking the activity of the jurist to the will of the people. And as duly appointed republican representatives, they indeed have the power, are explicitly granted the power by our constitution, to interpret the laws presented to them in the manner that comports with their experience and training.

Clearly, one wants jurists who do not cave into the whim of the day, or who fail to understand Scalia’s cautionary statement that “the risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one’s own views.” However, the decision to act, in any given case, as a duly appointed representative of the people does not mean, a priori, that a jurist who interprets the law liberally is making a grave constitutional mistake. In fact I would argue that based on a strictly textualist reading of the constitution, it would seem that that is exactly what the law requires them to do. To presume anything else commits the very mistake that the textualist wishes to avoid: the unwarranted privileging of the presumed intent of the lawmakers over their actual words and deeds.