Conor Casey & Adrian Vermeule[1]
On 28th February, William Baude of the University of Chicago Law School delivered the annual Scalia Lecture at Harvard Law School,[2] titled “Beyond Textualism?”—with startling results. Startling but also welcome, as we will explain.
The main question posed by Baude at the outset of his lecture is whether textualism is “missing something important”? Baude began in a conventional register by suggesting that textualism is said to reflect the “basic insight central to the structure of our government…and fabric of our law” that the job of the interpreter is (a) usually to enforce rules that have been made some place else, not to make the rules herself; and (b) not to imagine decisions that were actually never made by the legislature. In general, says Baude, the results of the “textualist revolution” have been “salutary” for embedding these ideas into legal practice and thought.
The talk, however, then took a sharp and surprising turn—indeed a turn towards the very approach to legal interpretation, the classical approach, that Ius et Iustitium was founded to advocate. Baude’s answer to the question posed at the start of his lecture turned out to be an emphatic yes. Textualism is grievously incomplete, Baude now argues, chiefly because it fails adequately to take account of other sources of law, including “unwritten background principles” and “natural law.” (Yes, everything in quotation marks is a quote from the lecture).
What follows is a sustained critique of what Baude dubs the “standard textualist teaching” that it is possible and justified for judges to simply claim they are adhering to the “plain meaning of the text” to resolve legal disputes. An obvious problem, which Baude sees, is that the text itself is often incomplete, even when supplemented by appeal to the so-called ‘original meaning’ of the text. Appeals to plain meaning, according to Baude, “gives incomplete or misleading answers to important questions about the law and so it needs to be supplemented with attention to our entire legal framework.”
Baude’s reference to the “entire legal framework” of the United States means having regard to the fact that a great deal of “our law,” Baude now observes, is unwritten and indeed has no well-defined authoritative source. Baude gives several examples of just how prominent unwritten principles are to the interpretation of both statutory and constitutional texts, ranging from common law principles like those underpinning the various immunity doctrines concerning the legislature, judiciary, and executive officials, to the rich corpus of interpretative canons pervading legal interpretation, such as the rule of lenity. Such unwritten principles feature prominently in legal argumentation and often lead judges to judgments quite at odds with the putatively plain semantic meaning of the text.
Baude says that making sense of these features of legal practice requires an understanding of the fact “our legal system relies not just on written texts, but also an unwritten law,” and urges that we need to “supplement textualism with this unwritten law—law that governs both interpretation and background principles against which interpretation takes place.”[3] The canons of interpretation, argues Baude, can be viewed as a form of unwritten common law that serve as a standing backdrop for interpreting legal texts. This model of legal interpretation is no novel proposition, but has been a part of our law, American law, “for a very long time.” The Founders themselves, Baude noted correctly, certainly believed that unwritten law was part and parcel of the legal order. They did not think that Courts had power to make law, and indeed this was not the attitude of judges and lawyers for a “large period of history” – at least prior to the influence of jurists like Justice Holmes and the legal realists in promoting the idea judges were not engaged in the discovery of law when engaging with unwritten law, but rather acting in a quasi-legislative capacity.
Understanding the importance of unwritten principles to legal practice, Baude declares, requires moving “beyond textualism.” (Shades of another Lent, three years ago). It might even require consideration of—in Baude’s own words—“natural law,” whose proper role in the adjudication and interpretation of posited legal texts is one of the oldest legal debates in the American republic. We need to know, Baude urges, what to make of the fact that natural law principles were “a backdrop of our legal tradition for a long time even when they are not enacted into law in American courts.”[4] For example, they functioned as “principles of construction in state constitutions or the federal constitution,” acting as a clear statement rule or canon of interpretation for reading constitutional text.
In stark contrast, in the “current regime” courts assume that when the statute’s “really run out there must be nothing to do” but for judges to make law. But to say that this is the choice judges face would have been unintelligible to jurists in the 18th, 19th, and early 20th Centuries. They took the view that a great deal of law could be—was supposed to be—unwritten and discovered; to be found in “custom, or first principles that were customary in some baser sense.”
Baude concludes by warning that denying the centrality of unwritten law to American legal practice has the risk of “sending us in statutory interpretation circles, unable to explain how we can avoid being literalists…and opportunists.” If students are not exposed to the centrality of unwritten law to legal practice and interpretation, then they will be “misled into thinking the only choices are the plain text and judicial policymaking” which Baude says “is not true.” We would add only that one might even call this fundamentally false alternative an argument by slogan.
All this is a welcome development indeed. To be sure, given Baude’s recent vituperative rejection of the classical view of legal interpretation, it seems that the Owl of Minerva, symbol of wisdom, has once again waited until dusk to take wing. Nonetheless, it is better that wisdom should take wing at all than that the legal theorist learns nothing and forgets nothing. As Justice Felix Frankfurter famously observed, “wisdom too often never comes, and so one ought not to reject it merely because it comes late.”
- Assistant Professor, University of Liverpool School of Law. Incoming Associate Professor of Public Law & Legal Theory, University of Surrey School of Law (effective June 2023); Ralph S. Tyler Jr. Professor of Constitutional Law, Harvard Law School. ↑
- William Baude, ‘Beyond Textualism’, Annual Scalia Lecture, Harvard Law School (2023). The quotes attributed to Baude are drawn from a recording of the lecture, which can be found here: https://www.youtube.com/watch?v=RUseqPHoCII ↑
- Our emphasis. ↑
- Our emphasis. ↑
