In a comment yesterday, aphrael raises an objection to my support for textualism as the only interpretive method that preserves the rule of law:
And since we are a nation founded on the rule of law, we are a nation governed by texts, not subjective purposes or intent
Respectfully, Patterico, this is an oversimplification.
Consider the thirteenth amendment, which says:
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction”
The plain text of this prohibits involuntary servitude except as a punishment for crime.
The draft was a form of involuntary servitude.
Almost nobody thinks that the thirteenth amendment prohibits the draft, even though the plain text would seem to. Explanations vary from “a free state has the right to defend itself and that means the draft is inherently within the power of the state” to “the Congress didn’t intend to ban the draft, so they didn’t”.
I respectfully submit that aphrael’s comment reflects an oversimplified understanding of textualism as applied by an adherent of “original understanding” such as Scalia or myself.
“Involuntary servitude” is a phrase that must be interpreted. Justice Scalia has explained that he is not a “strict constructionist” but rather someone who gives legal texts their ordinary meaning at the time of their adoption. Courts have held that the original understanding of the phrase “involuntary servitude” did not render unconstitutional a government’s actions to compel its citizens to perform civic duties such as conscription when necessary to the common defense, jury service, and the like.
Textualism does not say that you can never resort to extrinsic evidence of meaning, or that hyperliteral constructions are preferred. What it says is that evidence of unexpressed subjective intent is not evidence that should be given any legal effect. Textualists don’t care about the lawmakers’ intent unless that intent is expressed in the words of the law.
As I have explained many times, it is antithetical to the rule of law to hold a citizenry responsible for obeying the unexpressed will of legislators. All that matters is what the law says — and how it would be understood by the citizenry at the time of its adoption.
I have seen no coherent argument that explains why the contrary should be true, and as I have written many times before, giving effect to unexpressed intent is not consistent with the rule of law. For example, if legislators meant to cover preexisting conditions for children in Obamacare, but didn’t, what prevails? Their private hopes and wishes for hat they meant the law today? Or the words of the law themselves?
To ask such a question is to provide the answer. The fact that the answer to this question is obvious leads proponents of elevating intent over text to write lengthy and incoherent essays that muddy the issue, because a clear essay would be seen for the nonsense it is. Strategy number two is to conflate textualism with the theory of the “living Constitution” — a position which betrays either intellectual dishonesty, or a deep ignorance of the meaning of original understanding and the jurisprudential views of our best constitutional conservative judges.
This is why reading the Constitution’s text on the House floor was so clarifying — not because textualists believe in giving it a crabbed reading, or one that runs counter the original understanding of the words, but because the words are the touchstone of our national compact.
As we saw yesterday, that simple truth drives the leftists crazy. I’m glad to know the American people have had a chance to see that with their own eyes. It is an important point, and by making a spectacle out of it, the left showed which side they are on — far more clearly than a mere argument from the right could have.
[Guest post by Aaron Worthing; if you have tips, please send them here.]
Update: In a series of tweets, Roger Ebert decides to jump in with both feet and there really is no way to capture it without an accurate quote, so sue me. In the first tweet he writes, “I’d rather be called a Nigger than a Slave” and then links to an article about the censored Huck Finn. Then he decides to walk it back, saying the n-word again: “You know, this is very true. I’ll never be called a Nigger *or* a Slave, so I should have shut the **** up.” Which means in his mind it is better to say nigger than fuck, I guess. Hmm.
The good news, Roger, is you can’t be fired for this, unless it is pursuant to a race-neutral policy! (See the original post for explanation).
Also this all reminds me of a song by John Mellancamp (listen at about the 1:50 mark):
We now rejoin our regularly scheduled post.
Strap yourself in because this is a long one, but this seems apropos after our discussion of the new edition of Huckleberry Finn with the n-word redacted (here and here). But you know how it is a social norm that black people can say the n-word, but white people cannot. I mean agree or disagree, its a common sentiment. Well, recently Judge Barclay said in this memorandum opinion partially denying summary judgment in the case of Thomas Burlington v. News Corp. et al. that if a company tries to enforce that social norm, it will have engaged in unlawful racial discrimination.
Now before we dig in, call me politically correct, but I will not be putting that word, the n-word, in this post except once to quote the name of a book. It is not because my melanin levels are relatively low, but for two reasons. One, I consider it to be the curse word to end all curse words and thus I only use it when it is really necessary; in other words, I don’t think anyone should be saying it except on rare occasions. Second, using that kind of word can get Patterico’s blog stuck in net filters and harm the public’s ability to access this site and I would not be a good steward of his site if I caused him to get filtered. So except for that one exception, every other time I am quoting someone else saying the word, I will simply blank out the offending letters, thus “n____r.” In other words every time you see “n____r” you can take that as indicating the full word was said.
Anyway, here’s what happened. Basically Burlington was a weekend anchor on a Fox affiliate in Philadelphia when they were discussing a story about how the Philadelphia Youth Counsel of the NAACP was holding a symbolic burial of the n-word:
Robin Taylor had been assigned to the story. Taylor had attended the symbolic burial and testified that the participants at the burial used the word “at least a hundred times or more” during the course of the proceedings. Taylor discussed the story with her colleagues at the editorial meeting and consistently referred to the racial slur as “the n-word” instead of using the full word. During the meeting Plaintiff asked, “Does this mean we can finally say the word ‘n____r?’” Taylor said that she would not say the word in her story. [She is white.] Plaintiff told Taylor that although he did not necessarily expect her to use the word in her story, he thought that doing so gave the story more credence. At his deposition Plaintiff testified that he “wanted to make the point that I felt if we’re going to refer to the word ‘n____r,’ we should either say the word ‘n____r’ or refer to it as a racial epithet or a slur instead of using the phrase the ‘N’ word.”
(all quotes from the opinion omit the citations to the various transcripts.)
In other words, he was making an academic point about coverage of the story, one which I have some sympathy for given how I have gone on record saying it was silly for Cnn to air the Mohammed cartoons but then blur them out, reducing the image to a picture of a blurry piece of paper. No one ever accused him of saying it in a hateful manner. He was just making an academic point.
So naturally, all hell broke loose. For instance, his co-anchor (who was black) allegedly said that simply because he was white he was never allowed to say it, period (she denied saying it). And gradually the whole thing spun out of control, spilled over onto other news outlets until they had a meeting where they asked him to give his side of the story.
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