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A note on the politics of legal interpretation


The most annoying thing about right wing rhetoric regarding legal interpretation is its egregious question begging. And its hypocrisy.  The two most annoying things . . .

Speaking of fanatical devotion to the Pope, and the the hardy American tradition of Knowing Nothing, I find it more than a little hard to believe that all these Protestant evangelicals are really OK with a SCOTUS stacked with Papists and Christ-killers, which is one reason I don’t think it’s going to be Amy Barrett.  That, and the sexism.

Anyway, onto the question begging:

The trick the Federalist Society types try to pull is to claim that a particular method of legal interpretation is formally correct, in the sense that it’s formally required by the formal rules of the practice of legal interpretation.  Now leave aside for the moment whether these people are consistent in their application of that method — that’s where the hypocrisy comes in — or whether formal consistency is even possible when doing the kind of thing Supreme Court justices do (It isn’t.  To give one example out of many, how do you “balance” the claims of original textual meaning against the claims of precedent? Answer: however you do it, it can’t be done in any even loosely formal manner).

But again, leave that aside.  Imagine a fantasy world in which some sort of originalist method of interpretation of a 200+ year old document gives reasonably determinate answers to contemporary legal questions, and competing considerations from other valid legal norms like stare decisis, substantive justice, practicality etc., are magically eliminated somehow.

Even in such a world, the claim that your method is formally “the law” is still incoherent.  In what sense is your method “the law?”  In the sense that the legal materials themselves formalize your method as “the law,” in the same sense that the rules of baseball formalize the rule that a batter gets three strikes? Obviously not: there are no formal rules of legal interpretation in that sense, and even if there were, that would simply create an infinite jurisprudential recursion problem (what formal meta-rules make those formal rules of interpretation the actual rules and so forth?).

So when Randy Barnett et. al. — I’m just using the first name that comes to mind — says that originalist interpretation simply is the law, what the hell are these people talking about?  Are they making an empirical sociological observation about what lawyers and lawyer-adjacent people believe about what the law is? Because if they are, that observation is incorrect (Very large numbers of apparently well-socialized and professionally competent law-talking folks disagree with Federalist Society-style jurisprudence).

But if it’s not a formal claim about what law is, and it isn’t a sociological observation about what law is, then what is it?  A claim that God prefers a certain brand of jurisprudential interpretation, so that makes it the real thing? Or what?

I’ve been teaching this stuff for 28 years and I honestly, sincerely, non-rhetorically, still don’t understand what they’re arguing.

. . . Scott’s originalist thoughts are seventeen minutes more original than mine.


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