The curse of right-wing textualism
Revealed, yet again — and yet again by a “conservative” lawyer. Starting to see a trend?
[H]ere’s what we’re talking about. 31 U.S.C. § 5112(k):
The Secretary may mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.
Is the platinum coin legal?
Several folks on the left have taken the lead claiming that the platinum coin trick is illegal. Kevin Drum over at Mother Jones and Tom Maguire at Just One Minute are in that camp, but this argument takes two flavors.
Drum argues that the platinum coin trick is illegal because it’s not what Congress intended by the platinum coin statute. I’m not sure where Drum has been living all these years, though, because what Congress intends and what the laws actually accomplish do not generally have much to do with each other. Certainly there is no legal requirement that laws accomplish Congress’ purpose in passing them. Look no further than the so-called Affordable Care Act.
Legally, if statutory text is unambiguous on its face, there is no reason to look outside the text — at either the context or at congressional intent — to determine its meaning. In short, if the text is clear, we already know its meaning. It is irrelevant what one, two, or even a hundred legislators intended when they passed something if the text is clear.
In the case of the platinum coin statute, the language is simple and direct. There is no ambiguity and it therefore doesn’t matter a lick what Congress thought it was doing when it passed the law.
Without dealing with the specifics of the statute under dispute, and without going too far down the path of redescribing the role of guild-like conventions on interpretive communities– in the case of law, legal conveniences for making sure that the lawmaker’s aren’t trying to hide their intent, made manifest in the requirement that language used in legislation be straightforward for the purposes of interpretation — and how those conventions are merely shortcuts to determining what was meant, or intended, by the agency responsible for giving the signs being interpreted their fixed meaning (be that an individual or corporate intent), let me just point out the kernel assumptions on offer from Mr Malor, and then draw those out and show where they lead ideologically and politically.
To begin, let’s take Malor’s assertion that “what Congress intends and what the laws actually accomplish do not generally have much to do with each other,” offered as a form of proof that intention doesn’t matter, which to textualists is (sadly) a truism. Unfortunately, it’s also an admission that they don’t much care what a law is intended to do, only that they be able to use it in ways that allow them to massage out of the signifiers on offer whatever it is they wish to see. That is to say, they privilege the marks — the squiggles on the page that look like language — over the signs (which are the marks attached to their signifieds, their referents, to the very couplings that make them into language), and then resignify the marks to suit their purposes. Worse still, they then offer as a defense of such an incoherent and decidedly improper theft of another’s text the fact that they’ve long gotten away with just such thievery and linguistic incoherence.
Malor then asserts that “there is no legal requirement that laws accomplish Congress’ purpose in passing them,” which is just another way of saying sometimes Congress passes bad laws, largely because they’ve failed to signal their intent. But rather than force Congress to clarify, we instead play a game in which we give ourselves permission to use their failure to signal their intent as a justification for suggesting that their intent is now irrelevant — and that we are now free to do with their marks as we see fit. This, again, is a perversion of what it means to “interpret,” if by interpret we mean understand what it is the message we receive is supposed to be relaying to us. Failure to take into account context or intent is a failure to address the text before you. Instead, you are addressing what looks like a text — what looks like language — and then turning it into language yourself by applying your own signifieds to the signifiers before you.
That is, you are re-writing the text, then pretending that what you’re doing is interpreting it rather than creating it, then attributing that creation either to the lawmakers or to “the text itself.”
In the first instance, you have transferred your own meaning onto that of the lawmakers, which is linguistically absurd: the lawmakers had a meaning, which they set down in the signs you now claim you can ignore. In the second instance, you operate under the strange idea that a text can exist outside of our intent to a) see it as language, and b) assume that, because we see it as language, we recognize that it carries with it some intent. Once you concede that a text can only be a text when it is presumed to be language, then it follows that an interpretation of that text relies on intent. The upshot being, whose intent are we to privilege when we claim to be interpreting, those who turned the text into language, or those who wish to pretend that the text is some free-floating thing that they get to reconstruct on the fly?
Malor writes, “Legally, if statutory text is unambiguous on its face, there is no reason to look outside the text — at either the context or at congressional intent — to determine its meaning. In short, if the text is clear, we already know its meaning. It is irrelevant what one, two, or even a hundred legislators intended when they passed something if the text is clear.” But that begs the question: if the text were clear and unambiguous on its face, we wouldn’t be questioning the breadth of its application. And the reason we are doing so is because we are arguing that a text can’t be anything without having been signified by either its authors or its receivers. In fact, a statutory text can’t ever be unambiguous on its face except through legal convention, but legal convention is merely a shortcut for trying to glean likely intent.
So Malor has it precisely backwards: the text can’t, as a linguistic matter, ever really be clear without an appeal to the intent of those who wrote it — even if that presumption of intent is merely a function of habit on behalf of those who engage the text, the interpreter having internalized the idea that what he’s dealing with is language, and so has attached to it a specific intent and a specific meaning. And as that meaning comes either from the originary authors of the text or the text’s textualist rewriters, it makes no sense to argue that it is “irrelevant what one, two, or even a hundred legislators intended when they passed something if the text is clear,” because if the text were truly clear, it would signal the legislative intent.
To argue that it “doesn’t matter a lick what Congress thought it was doing when it passed the law” is to argue that it isn’t Congress that writes and passes the laws — rather, it is up to the clever textualist to determine what the law means. And so in that way, the textualist becomes the owner of the law — though s/he would never frame it that way.
Instead, they’ll tell you that their hands are tied, the text is “clear and unambiguous,” and so therefore it doesn’t matter what was meant by it because what is meant by it is an ongoing exercise in rewriting, revision, and recontextualizing.
It is a power grab based on the idea of consensus of interpretive communities. And it is precisely the mechanism through which the left robs the individual of his autonomy and replaces that with the collective will.
To see many on the right so committed to the linguistic sophistry at the heart of their own demise is dispiriting. And yet sadly, it is all too common.
(h/t geoff B)