Peter Jaffe (Georgetown Journal of Law & Public Policy) has posted Varieties of Textualism: Unit of Analysis and Idiom in the Interpretation of 18 U.S.C. Sec. 924(C) (Georgetown Journal of Law & Public Policy, Vol. 7, No. 1, 2008) on SSRN. Here is the abstract:
In his essay A Matter of Interpretation, Justice Scalia draws a distinction between "reasonable" textualism and strict constructionism. However, Scalia does not precisely explain the distinction, and instead offers the interpretive problem of 18 U.S.C. Sec. 924(c) (prohibiting the use of a gun during and in relation to drug trafficking crimes) to elucidate the difference in approaches.In his essay A Matter of Interpretation, Justice Scalia draws a distinction between "reasonable" textualism and strict constructionism. However, Scalia does not precisely explain the distinction, and instead offers the interpretive problem of 18 U.S.C. Sec. 924(c) (prohibiting the use of a gun during and in relation to drug trafficking crimes) to elucidate the difference in approaches.
Judging from this example, it would appear that Scalia's "reasonable" textualism differs from "strict constructionist" textualism in two respects. First, strict constructionism's unit of analysis is the single word; it looks to the denotation of individual words and then constructs meaning from those words using the rules of grammar and textual canons of construction. Scalia's textualism, on the other hand, recognizes not only words, but phrases, clauses, and sentences as indivisible units of meaning. Second, strict constructionism refuses to acknowledge literary devices such as the idiom. Scalia's textualism, on the other hand, recognizes such literary devices in statutory text.
Recognizing these subtle differences in approach sheds light on why textualist judges occasionally come to different conclusions using ostensibly similar methods. Such differences in conclusion do not reflect empirical disagreements, but instead reflect subtle theoretical differences.
I really liked this paper--highly recommended.
A few quick observations:
- I have serious doubts about the continued usefulness of the phrase--"strict constrructionism." Although I know believe that the phrase likely had a well-defined sense early in our constitutional history, it now seems obscure. On this see, Legal Theory Lexicon 035: Strict Construction and Judicial Activism
- Much of the conceptual confusion that has arisen in both constitutional theory and in theories of statutory application results from the realist conflation of the interpretation-construction distinction. (See generally Legal Theory Lexicon 063: Interpretation and Construction). The distinction is an old one--it figures prominently in the history of doctrine in several fields. Roughly, it can be stated as follows:
- Interpretation is the practice of ascertaining the linguistic meaning or semantic content of a legal text (e.g., constitution, statute, contract, will, etc.).
- Construction is the practice of translating semantic content into legal content. For example, if the semantic content of a text is vague, then its application to a particular case may require a construction that draws a bright line (or resolves the vagueness using case-by-case balancing or some other technique).
- For this reason, the term "strict construction"--if it is to be retained in the vocabulary of contemporary legal theory should be used to express the following idea:
The legal content derived from a legal text should be strongly constrained by the semantic content.
Of course, this formulation is itself vague. "Strong constraint" could itself be construed in various ways, for example:
The Principle of Consistency: Strong constraint could be construed as the requirement that the legal content derived from a text should be consistent with the semantic content. (That is, no rule derived from the text may contradict the semantic content of the text.)
The Principle of Identity: Strong constraint could be construed as the requirement that the legal content derived from a text by courts should be identical with the semantic content. (That is, no court should add supplementary rules (such as implementing rules) to rules that have legal content that is the contemporary legal translation of the linguistic meaning of the text.)
- Jaffe makes an important point when he notes the importance of two different approaches to discovery of the linguistic meaning (semantic content) of a text. One begins with individual words and then applies the rules of syntax and grammar to derive the meaning of the text as a whole. The second adds a preliminary step--determination whether there are phrases that have meanings that are distinct from the meaning of the individual words. Here is a passage from the article:
Strict constructionist textualists and Scalia’s-kind-of-textualists differ because the former select words as its unit of analysis, whereas the latter select both words and larger units of analysis, such as phrases and clauses. More precisely, a strict constructionist textualist ascertains the meaning of each word in a text151 and combines those meanings to construct the text’s meaning.152 The strict constructionist may encounter a group of related words placed together, where those words clearly inform each others’ meanings; it will analyze each word individually, but treat the surrounding words as context. On the other hand, a SKOT ascertains the meaning not only of words but also of phrases and of clauses, and combines those meanings to construct the meaning of the larger text. When encountering a group of related words placed together, it will— depending on the circumstances—treat surrounding words as an integral part of the unit whose meaning is to be determined, rather than as mere context for the unit whose meaning is to be determined. The subtle difference between these approaches partially explains the different outcomes between strict constructionists and SKOTs.
Although I think Jaffe has the labels wrong (he should be discussing interpretation and not construction), the substance is right. And on this score, Scalia is surely correct that the linguistic meaning of an utterance is frequently not derivable from the individual words using the principle of compositionality (word plus syntax & grammer = meaning). But how do we know when a phrase has an ideomatic meaning that is not equivalent to the meaning that would result from application of the principle of compositionality?
- This brings me to my final observation. The linguistic meaning of an utterance is bound by context. That is, the same string of words yields different semantic content in different contexts.
My own take on many of these issues is provided in Semantic Originalism.