24 March 2024

An Absence of Humility

Retired Justice Breyer questioned the value of pure "textualism" in interpreting the Constitution. His criticism is, on the one hand, well considered in the sense that legalistic textualism is only one tool in that should be found in an interpreters toolkit; just as not all of the fasteners of society or government are nails, not all tools should (or can) be hammers. Nonetheless, Justice Breyer is far too generous to the core competence of the writers involved. Even that neglects the unitary/collective writing problem involved in even small-group efforts like appellate decisions, in which not fewer than two and not more than nine individual understandings must be distilled into a single set of words and punctuation.

Consider the textualist distinction between "free persons" and "all other persons" that has since been struck out of the Constitution (after just a few hundred thousand deaths, more maimings and dismemberments, and economic devastation rivaling early-seventeenth-century Germany). It's all too easy to neglect the two obvious intermediate instances… and the less-obvious ones. The text itself identifies one of those two intermediate instances — "excluding Indians not taxed" — and implicates the obvious corollary of Indians who are taxed. (The eighty-years-later "correction" also fails here.) There remain more than a few problems that this text — either the Founding Era or the Fourteenth Amendment — does not resolve precisely because it's so poorly written.

  • The mixed-ancestry Indian and non-Indian person who is taxed for some purposes, but not for others — he or she lives on tribal land, but also owns real property in downtown Charleston (regardless of which Charleston), even if only by marriage.
  • Proper counting of persons who are in/concerned with more than one state. One could argue that this is a "modern" problem beyond the scope of what the Founders (or Reconstructionists) could be expected to consider — which itself points out problems with purely-textualist interpretation — except that the existence of "seamen" was readily apparent to the Founders, and even in the 1780s there were ferries across the Hudson, Delaware, and Potomac Rivers in routine use.
  • Prisoners held away from their habitual residences.
  • Noncitizen immigrants and temporary-if-long-term residents.
  • The assumption that the number of eligible voters is directly correlated with the number of eligible residents, even leaving aside that the interests of the two groups are sufficiently aligned to be reflected in any vote (just consider the disparate gender effect of the Second War of American Secession!).
  • The meaning of "respective numbers" (and whether "counting the whole numbers of persons in each State" reflects the mathematical concept of "whole numbers, that is integers" or mere rejection of ex post status-based reduction to "three-fifths").
  • Perhaps most to the point, how any of this language would be understood by a citizen whose first language was not well-educated, upper-middle-class, UK-landowner-designated English… which was already fragmented in terms of Capitalization and the proper puncutation of precatory clauses.

I will not gild the lily further… except to note that the phrase "gild the lily" arises from a misquotation of a Shakespearean play (King John) that was itself not common knowledge even to the educated classes of the Founding or Reconstruction eras, and suggest that that illustration demonstrates the last two points above rather clearly.

Even more disturbingly, we cannot even count on the writing competence of those charged with explaining meaning. Just what does "all deliberate speed" mean, even in the limited context of public elementary and secondary education? (And what do those terms mean, in a society that by half a century later treated postsecondary education as not an occasional option but an essential social construct?). Even the Nine Wise Guys have been unable to ever explain what an "establishment of religion" is; the Lemon "balancing test," for example, never confronted the problem of the dishonest legislator/legislature — a problem that should have been readily apparent to Justices sitting in 1971, in the face of the "all deliberate speed" problem less than two decades old at the time. The rise of first drafts and bench memos being drafted by callow, never-experienced-life-outside-of-academia law clerks, with the process/product influence of the language of early drafts on final products well known to literary scholars and entirely neglected by legal scholars, just further complicates the reliance on language imposed via briefs and oral arguments presented by lawyers interested not in the abstract "what the law is" but the rather more concrete "what interpretation benefits my client's stated-and-perceived interests (regardless of whether that's self-defeating)."

The competence-at-writing problem is a higher-order corollary of the Dunning-Kruger effect, which is usually mischaracterized as concerning persons of low skill levels overestimating their own competence. Actually reading the article, though, demonstrates that this was the product of an experiment designed to determine the existence of any discernable, replicable distinction: By no means is the Dunning-Kruger effect limited to "low skill levels." Consider, as an illustration, the problem of cross-sport competencies, even among undoubted world-class athletes. I'd suggest considering the number of malapropisms uttered by legislators and constitution-drafters, but do I really need to? Indeed, consider just "all deliberate speed." Or "establishment of religion," or "peaceably to assemble," or "abridging the freedom of speech, or of the press."

My ultimate point here is that the egos of the political classes (and especially, but not only, those purportedly "learned in the law" who are almost always generalists in law) reinforce the Dunning-Kruger effect of their (in)competence at writing even for themselves — let alone for centuries thereafter. One need not consider the at least equally prominent problems of "binding nonparties to compromise language," "evolution of language no matter what form of 'textualism' or 'originalism' is at issue," and "linguistic divide-by-zero errors originating before 'zero' was a concept imported from another culture." Those are just the writing-related problems; the difficulties in failures of imagination — is a TikTok video, or a disappearing SMS message, a "writing" for purposes of the Fourth Amendment? how does aerospace warfare fit into the Constitutional budget-horizon clauses? is a "well-regulated militia" an arm of the state, a paramilitary force not imagined in the eighteenth century, or something else? — and of externally-imposed changes like "binding international humanitarian law" transmute purely textualist arguments into egotistical sophistry.

Textualism, as the legal profession has altered the term itself, is a tool. I'd really rather that our judges, legislators, and executive branches not become tools themselves (that begins with "t" which graphically resembles "f"…).