Why all Textualists Should be Current Meaning Textualists - Responding to Kara's Blog Post + Sexton '24 Conversion Mission

Post note: Grab a cup of coffee Prof. Hurley because fully developed blog ‘tutorial’ posts are back! I realized halfway through there are so many strong reasons to be a current meaning textualist that even after cutting several this was going to be 5 or more pages so I decided to leave quick summaries of some arguments with a longer quoted explanation from this weeks tutorial paper and a previous phil of law paper. When no one is cited for a quote it is from me.

Something interesting about Scalia's account of reasonable construction textualism is that he does not introduce originalism into it until pg. 38 when he turns to constitutional interpretation. Rather then turning to an original meaning textualism, if Scalia remained committed primarily to constructing the most reasonable construction of a text within context he would be a current meaning textualist, the strongest form of textualism. 

What is current meaning textualism?

To quote my tutorial paper "Unlike original meaning textualism’s focus on original understandings of the text, current meaning textualism focuses on the current understanding of the text. This means current meaning textualists do not ignore things such as the evolution of language, culture, and precedent that occur after the bill’s passage. To clarify the distinction: for an original meaning textualist repealing and then immediately passing a statute with the same language would make it a new law, situated with a new original meaning. For a current meaning textualist, it is as if the text is constantly being repealed and repassed in the present, through which the text is constantly being further clarified by new precedent and context." In other words as new laws are passed and rulings are made by judges on laws those changes in legal precedent change the surrounding texts which effect our interpretation of a text, and that's great!

Why is current meaning textualism better then original meaning textualism?

1.     Current meaning textualism best accesses unified objective voice of the text/law because its more bound by precedent and stare decisis.

A unified textual voice requires rulings to fit with past rulings (not swapping whether something is illegal every other day because of subjective legislative intents), hence the importance of stare decisis and precedent. Therefore a stronger textualist voice will have greater access to precedent and the interpretative context it provides. Scalia agrees. For Scalia text is best interpreted in context. Since context occurs after a statute/law’s adoption, I argue text is best interpreted including that context after the text’s adoption (i.e. laws passed after, judicial rulings). Rather than excluding this category of context for textual interpretation, context after a statute/law’s adoption, we ought to analyze all context for textual interpretation. Thus current meaning textualism has a greater access to precedent then original meaning textualism, and stare decisis as a foundational justifying principle of current meaning textualism rather than a competiting independent principle as Kara highlights it is for originalism (which if you like precedent in stare decisis is a major benefit). "His exception to originalism is stare decisis which he believes should hold in the interest of stability. By that if originalism leads us to a different conclusion of what the text means then how its be[en] interpreted for hundreds of years, we must refer to stare decisis. With that, we must follow the false interpretation." (Kara) In other words, not only can the originalist not justify upholding precadent or stare decisis, their account is in direct opposition to it. It seems the original meaning textualist is obligated to throw out precedent that they see as contradicting the original meaning of the text. Furthermore it seems like if Originalism is good textualism this would never occur, so the fact that it does calls originalism into question. How could the previous “original” interpretation hundreds of years ago of what the text means be the “false interpretation” for an originalist? It seems the originalist needs to stick to their guns and defend the “original” meaning as first interpreted as the best or correct one. Rather if you think an original interpretation could be worse then a later interpretation and ought to be revised with our current understanding, then welcome to the current meaning textualism. To summarize, current meaning textualism “provides better textual context since it is fully aligned with stare decisis as a foundational justifying principle, rather than an independent principle that has to be balanced against original meaning textualism.”

2.     Current meaning textualism lacks subjective legislative intent found in original meaning textualism.

Original meaning textualism falls prey to Scalia’s concern with judge made law. Kara’s blog post illustrates this “Rather, an originalist would say that to use textualism in the sense that we must understand it from what a reasonable person would gather from the law, and thus we must understand it from how the text was originally understood.” This is the exact same language Scalia criticizes in subjective legislative intent models, imagining what the reasonable person would believe the law to be and then filling in one’s own beliefs as the “reasonable” beliefs.Furthermore, original meaning textualists can always arbitrarily jettison precedent and other courts’ rulings on a law since it always occurs after the laws enactment. They can pretend to care about precedent when it favors them, and about original meaning when it does not.

Second, Judges can misinterpret the original meanings of text (maliciously or accidently). For example Judges can state “the word feather was commonly used in 1964 to describe one’s mood. It is nearly impossible to misinterpret the current meaning of text, since due to our familiarity with 2022 language we would immediately recognize that definition as beyond common usage.” But we would not be able to challenge it is the field of original meaning since it is in the dictionary now and then, and know of us know feather’s 1964 common usage/understanding.

Therefore it appears Scalia’s concern with judge made law far better applies to original meaning textualism then current meaning textualism. This is because for the current meaning textualist, precedent and the interpretations of other judges, and bills passed by the legislator after the statute, are part of the current meaning of the text. Thus the current meaning textualism, heavily informed by precedent rather than a judge’s opinions of original meaning, maintains a strong distinction of ‘what the law is’ (precedent) distinct from ‘what the law ought to be.’ The latter being the exclusive realm of the originalist, the law ought to be the original meaning of the text, and what the law is ought to always be corrected to that when it isn’t what it

3.     Accessibility of studying current meaning of language/distorted original meaning language.

Searching for the original meaning can become distorted, judges come to different conclusions about it all the time. “One must deny their current understanding of how the world operates and substitute it with a mix of assumptions and records from the enactment date." This is difficult to do, and impossible to do perfectly. The result is original meaning textualists turning to drafter’s legislative intent to decide disputes between original meaning, Gorsuch on pg. 25 of Bostock, "To ferret out such shifts in linguistic usage or subtle distinctions between literal and ordinary meaning, this Court has sometimes consulted the understandings of the law’s drafters as some (not always conclusive) evidence.” Thus, original meaning textualism often collapses to subjective legislative intent. And its no wonder. Even when surrounding texts from a timeperiod are available for context (their frequently aren’t any), they often leave heavily skewd perspectives. “Until recently, creating and preserving records was overwhelming the ability of the wealthy ruling class. Even charitably assuming these authors intend to accurately record the context of their eras, rife with discrimination, the wealthy author’s perspective on common usage of terms, and terms’ meanings will be far from that of the public. Universalizing the perspective of the elite on terms alone leads back to … problems of legal elitism.” Rather then failing to represent a fictional historical standpoint, and instead inputting our biases, it seems far preferable to not alienate ourselves from our contemporary common knowledge. Linguistic inaccessibility is never a problem for the current meaning textualist. “Current language more accurately maps to our current common usage, and reflects terms losing and gaining meaning. Once a term’s meaning is lost, such as feather as mood, it is simultaneously lost from current meaning’s common usage, and vice versa. Thus, the current meaning textualist need not conjecture about what it could have meant, and whether it was commonly used, from an unfamiliar past common knowledge standpoint.”

4.     Current meaning textualism is more accessible and interpretable to the citizen

I agree with Kara’s blog post, and Scalia’s concerns with “secret” law. "There cannot be a “secret” law where only those who know the legislative history or the intent of the drafters understand the true meaning of the law. ... There is also judicial restraint as a judge should not overreach when interpreting a law, as interpreting it “as the law ought to mean.”"(Kara)

Sadly, another byproduct of originalism interpreting of legislators’ meaning outside of modern context is the development of terms of art for judges outside of the modern layperson’s common usage. Since the citizen has no sway or understanding of the original meanings of language centuries ago, original meaning “becomes solely determined by people proficient in law. This moves law more towards the anti-democratic intent of legislators Scalia feared. Law becomes more unintelligible to the non-legally proficient, paralleling practices “(Davis) ”emperor Nero was said to engage in: posting edicts high up on the pillars, so that they could not easily be read.” (Scalia) I’m unsure if you could be closer to a secret law, then one which is written in a language unknown to the contemporary citizen, which has its own language of original interpretation which is definitionally not the current meaning/understanding.

 5. More judicially efficient and better for the legislature

Some may argue that “legislatively updating bills properly would solve these problems with original meaning textualism. However, this is not the case. The good legislature, intending to update poorly understood law, would look at how that law was previously understood. However as previously discussed simply repealing and passing the same law would having a different original understanding. Thus, before resolving to make any changes the legislator is already guessing at potential judicial interpretations of the updated law. Moreover, the legislator has the job of doing judicial statutory interpretation of all precedent between the bill’s enactment and the present, since that work ignored by original meaning textualists would become recognized precedent post update. This places an incredible burden on the legislature to guess statutory interpretation correctly. Any mistakes require the passage of another update, since it will be stuck with its original meaning. This is ignoring the impossible pragmatic burden of the legislature habitually updating every single law after the passage of any other law, since it updates the judicial context. The current meaning textualists’ world is one where the legislator does not need to update every law with lists of exceptions, it allows the legislator to understand current judicial interpretations of the law and the implications of changes, and it substitutes the legislator predicting statutory interpretation of ignored precedent with records of judges interpreting that precedent. Moreover, the more specific constraints original meaning textualists place on how legislators must operate to ensure a statutory interpretation works, the less realistic and politically independent the interpretation becomes.”