Wednesday, June 29, 2016
Kevin's welcome reply to my recent paper arguing that Catholics especially, but all other reasonable people of good will as well, should reject McLaw, A Catholic Way to Cook a Hambuger? [You Bet], ignores the point I had hoped to make, preferring instead to make another point, a point no one I aimed to be in serious conversation with would deny. Yes, of course, human law, and therefore human lawmakers, must make choices not dictated by higher law; it's called determinatio of higher law by human law, as we all know. Two versus three or thirteen senators -- not a matter of natural (let alone divine positive) law! Even so, I would contend that my argument against textualism should have purchase with those who do not share my higher law starting point.
My argument against textualism addresses something altogether different from the need for human lawmakers to make determinatio. My argument goes to the fact that textualism's original (and personal) sin is designedly and systematically to discard the possibility of law *exactly* by substituting *probability* for *actual meaning*, that is, by substituting schedules of probable meanings for the (perhaps elusive) meanings promulgated by the (admitted) lawmaker. I readily grant, of course, that sometimes schedules of probable meanings are the best available *surrogate* for the lawmaker's actual meaning, but textualism, by its own boast, doesn't bother to stop and genuflect before the lawmaker as it processes by in favor of the expedient that is probability.
To repeat, the arbitrariness inherent in textualism that I identified in my argument has nothing to do with whether the number of senators is two rather than three, but with, rather, whether judges or legislators can licitly -- that is, legally -- decide (or collude) to make the legal meaning of "two," or "three," "stationary source," or "the judicial Power" be a function of recorded (or speculative?) probabilities. The compressed argument against textualism in my present paper presupposed (with benefit of citations) earlier papers of mine, beginning with Brennan, "Realizing the Rule of Law in the Human Subject," 43 Boston College Law Review 227 (2002). See also Brennan on "Avoiding the Authoritarianism of 'Textualism'" 83 Notre Dame Law Review 761 (2008)
My position, in sum, is that human lawmaking must be isomorphic with the method of human intelligence (because human intelligence in good working order is methodical, not episodic), or else divinely inspired; otherwise it's just better or worse authoritarianism; and, furthermore, that law is what the lawmaker means the law to be (assuming it is for the common good, etc.), not what interpreters interpolate via probabilities about meanings, except to the extent that such interpolations are, contingently, the very best the interpreter can deliver in aid of making what the lawmaker promulgated effective. Textualism is a remote second best, if that, but certainly not the higher road.