Of Bible, interpretation, and Supreme Court judges, part 01

Strict interpretation or not strict interpretation, that is the question. Actually, it is the question that we have been debating for many years. With Judge Sotomayor the question came back to the fore. No, I am not going to take a position on the judge herself, lest you lose the point of these next couple of postings, but I do cite her to say that it is a current and ongoing debate.

So, what is the position of someone who believes in strict interpretation? Well, one definition is:

Strict construction requires a judge to apply the text only as it is written. Once the court has a clear meaning of the text, no further investigation is required. Judges should avoid drawing inferences from a statute or constitution and focus only on the text itself. Justice Hugo Black argued that the First Amendment’s injunction that “Congress shall make no law,” should be construed strictly: the term “no law,” Black thought, admitted virtually no exceptions . . .

So, it seems simple enough, the law is written, and the law should be interpreted as written. Well, but there are two other theories that are usually classed with strict constructionism, but slightly change what it means to be strict. One is textualism:

Textualism is a formalist theory of statutory interpretation, holding that a statute’s ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or substantive questions of the justice and rectitude of the law.

“Textualist judges have contended, with much practical impact, that courts should not treat committee reports or sponsors’ statements as authoritative evidence of legislative intent. These judges base their resistance to that interpretive practice on two major premises: first, that a 535-member legislature has no “genuine” collective intent concerning the proper resolution of statutory ambiguity (and that, even if it did, there would be no reliable basis for equating the views of a committee or sponsor with the “intent” of Congress as a whole); second, that giving weight to legislative history offends the constitutionally mandated process of bicameralism and presentment.” — John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 1997

The textualist will “look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words.” The textualist thus does not give weight to legislative history materials when attempting to ascertain the meaning of a text.

Now catch carefully what textualism does. It does not matter to a textualist what any legislature meant to do when they passed the law. It does not matter to a textualist what problems the legislature was trying to correct. If, in his view of language, the legislature did not get the wording quite right, that is too bad. The law will be interpreted as written, even if it leads to a worse situation due to an infelicitous wording. Textualist judges have been known to rule on the wording of a law in such a way that is completely opposite to what a legislature intended due to an interpretation of language. Textualist judges are, in a sense, “strict interpretationists” but they are also the judges that rule on “technicalities” such as “getting one off on a technicality.” Yet, they are, indeed, strict interpretationists for they insist on the meaning of the words as written. Now notice that textualist judges ARE NOT liberals. They are actually very conservative. Many of the cases that we cite as “getting someone off on a technicality” were not the result of liberal activism but of a conservative strict interpretation of the law by a textualist.

But, there is another theory similar to strict interpretation and that is originalism. OK, so what is originalism?

In the context of United States constitutional interpretation, originalism is a family of theories central to all of which is the proposition that the Constitution has a fixed and knowable meaning, which was established at the time of its drafting. A neologism, “originalism” is a formalist theory of law and a corollary of textualism. Today, it is popular among U.S. political conservatives, and is most prominently associated with Antonin Scalia, Clarence Thomas and Robert Bork. . .

Originalism is a family of theories, principally:

* The ‘original intent theory,’ which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it.

* The ‘original meaning theory,’ which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is with this view that most originalists, such as Justices Scalia and Thomas, are associated.

Now, there is something very very important for you to catch with an originalist. Unlike a textualist, the originalist will look at the papers of the debate of the legislature in order to ascertain what the intent of the law was and what they were trying to cure. They will tend to apply this intent even if the written law has some linguistic deficiencies. In other words, an originalist does believe in a “strict” construction of the law as intended by the legislature, but is willing to take very small liberties with the text in order to ensure that the law is interpreted as intended. Again, as you can see from the support of Scalia, Thomas, and Bork, this IS NOT a liberal theory of law. The originalist is trying to avoid the problem of the textualist, that of “letting someone off on a technicality.” But, in order to do that, an originalist is willing to let go a little of a strict linguistic view of the law.

So, uhm, are you starting to catch the drift that strict constructionism is not quite as simple a theory as you might think? And, second, uhm, what about other theories? And, what does all this have to do with the Bible, Eastern Orthodoxy, and Anglicanism?

===MORE TO COME===