Vincent Clarke’s piece on textualism-as-postmodernism, while certainly full of interest, seems to me ultimately incomplete and in need of critical qualifications. The problem is that “textualism”—which Clarke never squarely defines—can be said in many ways, or at least two ways, of which Clarke discusses only one. The one Clarke discusses is indeed incompatible with the classical legal tradition. Another of those ways, however, is entirely compatible with the classical legal tradition; indeed it is Thomas Aquinas’ own view.
In early work, I attempted to distinguish two senses of formalism, the genre of which textualism is a species. In one version, a positivist version, textualism is justified analytically and stipulatively, as an exclusive claim about what counts as “law.” I think this is the view Clarke means to condemn. In another version, textualism is justified not analytically but by reference to substantive goods of political morality, as Ronald Dworkin put it in a closely related context. Those goods may include legal generality, certainty, predictability, and other distinctive desiderata of a legal system that textualism is claimed to produce. (Whether it does in fact produce such goods is not my concern here).
Nothing in the structure of that second version requires or presupposes that the relevant goods lie “outside” law, whatever that means, or that only the text counts as law. (Note that, on Dworkin’s mature view, law is a distinctive department of political morality, so that it’s perfectly possible to speak of promoting goods of political morality within law.) All the second version requires is an institutional claim: for a certain class of decisionmakers, under given circumstances, certain goods are best attained by requiring those decisionmakers to stick closely to the ordinary, conventional meaning of text. In other words the common good promoted by law in its extended classical sense, including the natural law, might itself best be served if judges generally stick to the ordinary meaning of texts of civil law enacted by public authorities who are charged with stewardship of the community, and who enact those texts as rational ordinances intended to serve the common good.
When might this be so, under what conditions? Why would judges or other decisionmakers ever do better by, in effect, refusing to consider elements of law that lie outside enacted texts, in some cases? The basic answer is that if the decisionmaker at the point of application is limited in some way, prone to error, it may be better that they should not attempt to consider anything beyond the ordinary meaning of the text, at least presumptively. Thomas Aquinas explains:
As the Philosopher says (Rhet. i, 1), “it is better that all things be regulated by law, than left to be decided by judges”: and this for three reasons. First, because it is easier to find a few wise men competent to frame right laws, than to find the many who would be necessary to judge aright of each single case. Secondly, because those who make laws consider long beforehand what laws to make; whereas judgment on each single case has to be pronounced as soon as it arises: and it is easier for man to see what is right, by taking many instances into consideration, than by considering one solitary fact. Thirdly, because lawgivers judge in the abstract and of future events; whereas those who sit in judgment of things present, towards which they are affected by love, hatred, or some kind of cupidity; wherefore their judgment is perverted. Since then the animated justice of the judge is not found in every man, and since it can be deflected, therefore it was necessary, whenever possible, for the law to determine how to judge, and for very few matters to be left to the decision of men.
Aquinas here argues, as Fred Schauer later put it, that “cases make bad law”; decisionmakers at the point of interpretation may often go wrong precisely because they are aware of the particulars of the application of the law at issue. The generality and formalism of textualism (second sense) attempts to combat this by subjecting the decisionmakers to a general rule.
To be clear, Aquinas does not mean that the interpreter of the law should never depart from the ordinary meaning of the text. At the operative level, Aquinas’ approach is an example of (what Schauer calls) “presumptive positivism”—textualism that is presumptive, but also defeasible, when for example an unusual circumstance falls outside the core central case that was within the rational ordinance of the law. Because the lawmaker, too, is imperfect and subject to limited foresight, cases may arise that fall outside the central case of the lawmaker’s rational ordination. Aquinas again:
It happens often that the observance of some point of law conduces to the common weal in the majority of instances, and yet, in some cases, is very hurtful. Since then the lawgiver cannot have in view every single case, he shapes the law according to what happens most frequently, by directing his attention to the common good. Wherefore if a case arise wherein the observance of that law would be hurtful to the general welfare, it should not be observed. For instance, suppose that in a besieged city it be an established law that the gates of the city are to be kept closed, this is good for public welfare as a general rule: but, if it were to happen that the enemy are in pursuit of certain citizens, who are defenders of the city, it would be a great loss to the city, if the gates were not opened to them: and so in that case the gates ought to be opened, contrary to the letter of the law, in order to maintain the common weal, which the lawgiver had in view. Nevertheless it must be noted, that if the observance of the law according to the letter does not involve any sudden risk needing instant remedy, it is not competent for everyone to expound what is useful and what is not useful to the state: those alone can do this who are in authority, and who, on account of such like cases, have the power to dispense from the laws. If, however, the peril be so sudden as not to allow of the delay involved by referring the matter to authority, the mere necessity brings with it a dispensation, since necessity knows no law.
I have only scratched the surface. Much more could be said about this, and the full structure and nuance of Aquinas’ view could be drawn out at greater length; one would have to consider who, exactly, has the power to identify nonstandard cases in the passage just above, and the role, if any, of precedent on Aquinas’ view. But I trust my main point is clear enough: there is a sense of (at least presumptive) textualism that is entirely compatible with the classical legal tradition. It should be clear that no global condemnation of “textualism” is adequate, from the standpoint of the classical lawyer, if we risk sweeping Aquinas’ view into the net.
Insofar as I can make out what Clarke means by textualism, it is the first version I have mentioned. It is the view that “there is nothing outside the text”—meaning, in law, that there is no law outside enacted positive texts. Any considerations adduced from beyond the text are not-law and thus lie beyond the office of the judge to consider. Justice Gorsuch does indeed endorse this view, saying that “[o]nly the written word is the law,” and Clarke is right to condemn it on the grounds that he does. But this ought not to have been cast as a general condemnation of “textualism” as such, for there is also the second version of textualism, which is itself justified by reference to the common good and which emphatically does not presuppose that there is no law beyond the text. My aim here is not to condemn Clarke, who doubtless considers that he himself means to address “textualism” only in the sense he suggests, what I have called the first sense. But I do mean to caution that any global attack on “textualism” is far too crude.
(Postscript: constitutional originalism, too, comes in these twin versions. The respectable version of originalism, in my view, is the one offered by Jeff Pojanowski and Kevin Walsh and separately by Josh Hammer, and it has the same basic structure as the account of textualism given above. But even in this respectable version originalism can only be presumptive, and in any event constitutional law features certain distinctive considerations. I believe that originalism is an inadequate approach to our constitutional law, for reasons I have explained here. But my disagreement with Pojanowski, Walsh and Hammer is ultimately one of contingent judgement rather than of principle; I believe their view might have been correct, so to speak, although it turns out not to be.)
Adrian Vermeule
