I agree with the criticism of the approach suggested in the article, particularly this part which seemed to be the crux of the whole thing: “Instead, the Court was (roughly) distinguishing between literal meaning and a kind of non-literal meaning—which is something that Frederick and Newsom themselves do throughout their paper.” I wasn’t convinced the contextualist textualism approach really differs much in degree from Holy Trinity, and not in kind.
Also disappointed to see, once again, a blinkered, crabbed textualism and positivism at work. Only enacted text subject to bicameralism and presentment as the Law? That is barely the tip of the iceberg of the Law most Americans confront and navigate every day. The breezy social contract section was not persuasive either.
There’s a notable tic in the article. The articles use the word “clinic” or “clinical” more than 20 times as an epithet for a certain rigid textualist foil — but like many law review articles this piece is trained on semantic disputes over enacted statutory text in litigation. The judge is adjudicating between the tortured and contrived readings of both parties, especially in an appeals court setting. THAT IS the “clinic”!
Re's criticism reminds me of the argument I've heard people make against centrist political philosophies. It goes something like this: Political conservatives (or liberals, but it's easier to just do one side here) are hypocrites if they don't embrace libertarianism because that represents the uncompromised version of conservatism, i.e., the real conservatism. And if you're not willing to embrace libertarianism, then you have to accept liberalism, socialism, or even communism as the alternative.
Several problems with all that, but the main one is that conservatism is distinct from libertarianism. One is not being a bad conservative if they reject libertarianism. And they certainly do not need to accept left-wing ideologies.
Similarly, here, one need not embrace what Re is describing as textualism because it's not textualism. It's strict constructionism. No real textualist that I'm aware of has ever claimed that text should not be read in its broader context to understand its meaning. That's not going beyond the text. That's giving the text its proper meaning, which is the whole point of textualism. Re and Breyer's strawman version of it is not what a textualist advances.
Scalia and Garner do a good job of elucidating the differences between textualism and strict constructionism in "Reading Law." In short, like conservatism and libertarianism, they aren't the same thing. The book does a great deal more to explain textualism, and it's well worth a read for anyone who wants to truly understand the method, not a "tut tut" version of it by people who reject it.
What about the requirement that the animal be in a basket? What size of basket? Does the rule disallow animals that won’t fit in a basket? Seeing eye dogs of the larger breeds? To say nothing about whether the animal must be alive. Suppose our Frenchman is returning from a trip to boucher with a fully dressed duck, goose, hare, or suckling pig in his basket? Must he pay for the (dead) animal?
In fairness to the authors, there is a new plain text--that of the actual rule from the train in question--that the they analyze in this paper. "A cat, dog, or other companion animal" is a significant departure from "animal" such that ordinary textualism gets you to the same result. I'm not really sure what the "contextual" part of their analysis is adding to this example (unless you believe that ejusdem generis is foreign to textualism).
I agree with the criticism of the approach suggested in the article, particularly this part which seemed to be the crux of the whole thing: “Instead, the Court was (roughly) distinguishing between literal meaning and a kind of non-literal meaning—which is something that Frederick and Newsom themselves do throughout their paper.” I wasn’t convinced the contextualist textualism approach really differs much in degree from Holy Trinity, and not in kind.
Also disappointed to see, once again, a blinkered, crabbed textualism and positivism at work. Only enacted text subject to bicameralism and presentment as the Law? That is barely the tip of the iceberg of the Law most Americans confront and navigate every day. The breezy social contract section was not persuasive either.
There’s a notable tic in the article. The articles use the word “clinic” or “clinical” more than 20 times as an epithet for a certain rigid textualist foil — but like many law review articles this piece is trained on semantic disputes over enacted statutory text in litigation. The judge is adjudicating between the tortured and contrived readings of both parties, especially in an appeals court setting. THAT IS the “clinic”!
Re's criticism reminds me of the argument I've heard people make against centrist political philosophies. It goes something like this: Political conservatives (or liberals, but it's easier to just do one side here) are hypocrites if they don't embrace libertarianism because that represents the uncompromised version of conservatism, i.e., the real conservatism. And if you're not willing to embrace libertarianism, then you have to accept liberalism, socialism, or even communism as the alternative.
Several problems with all that, but the main one is that conservatism is distinct from libertarianism. One is not being a bad conservative if they reject libertarianism. And they certainly do not need to accept left-wing ideologies.
Similarly, here, one need not embrace what Re is describing as textualism because it's not textualism. It's strict constructionism. No real textualist that I'm aware of has ever claimed that text should not be read in its broader context to understand its meaning. That's not going beyond the text. That's giving the text its proper meaning, which is the whole point of textualism. Re and Breyer's strawman version of it is not what a textualist advances.
Scalia and Garner do a good job of elucidating the differences between textualism and strict constructionism in "Reading Law." In short, like conservatism and libertarianism, they aren't the same thing. The book does a great deal more to explain textualism, and it's well worth a read for anyone who wants to truly understand the method, not a "tut tut" version of it by people who reject it.
What about the requirement that the animal be in a basket? What size of basket? Does the rule disallow animals that won’t fit in a basket? Seeing eye dogs of the larger breeds? To say nothing about whether the animal must be alive. Suppose our Frenchman is returning from a trip to boucher with a fully dressed duck, goose, hare, or suckling pig in his basket? Must he pay for the (dead) animal?
In fairness to the authors, there is a new plain text--that of the actual rule from the train in question--that the they analyze in this paper. "A cat, dog, or other companion animal" is a significant departure from "animal" such that ordinary textualism gets you to the same result. I'm not really sure what the "contextual" part of their analysis is adding to this example (unless you believe that ejusdem generis is foreign to textualism).