Saturday, September 29, 2018

Textualists Should Not be Supreme Count Judges

I note that the Jesuits supported Kavanaugh in an editorial, dated July 9, 2018, in America - The Jesuit Review. Their support was based on the fact that “ Judge Kavanaugh is a textualist who is suspicious of the kind of judicial innovation that led to the court’s ruling in Roe.[1]

Now the magazine is reversing its previous stand for the following stated reason:

Evaluating the credibility of these competing accounts is a question about which people of good will can and do disagree. The editors of this review have no special insight into who is telling the truth. If Dr. Blasey’s allegation is true, the assault and Judge Kavanaugh’s denial of it mean that he should not be seated on the U.S. Supreme Court. But even if the credibility of the allegation has not been established beyond a reasonable doubt and even if further investigation is warranted to determine its validity or clear Judge Kavanaugh’s name, we recognize that this nomination is no longer in the best interests of the country. While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn.

Their decision to withdraw their endorsement was a wise one.

My problem with both editorials is the writers’[2] blind adherence to textualism as the central principle of statutory and constitutional interpretation.

I thought the Jesuits were smarter than that.

Textualism, as practiced by the late Justice Scalia, and presumably Kavanaugh, has been shown to have no scientific validity whatever. The last forty years of research in the fields of linguistics and cognitive science have resulted in more progress in understanding language than in the past 3,000 years. The reason for this progress is the development of scanning devices that can look into the brain and tell what is going on. This includes PET, MRI, fMRI and CAT scans.

One discovery is that the decoding model, which forms the theoretical basis for textualism, ranks with the Ptolemaic astronomical model as a plausible theory that, in the light of subsequently discovered facts, turned out to be false. The decoding model, in essence, views language as a series of words with established meanings, and that humans comprehend sentences and paragraphs by taking the common and ordinary meaning of each word and arrive at the meaning of the whole by putting together, “decoding,” their meanings using rules of grammar and construction.

Gordon Christy explains why this doesn’t work:

Textualism rests on the undisputed fact that words, phrases, and sentences can be assigned meanings through dictionaries, certain canons of construction, and statistics based, for example, on the corpus linguistica. Textualism, however, erroneously assumes that linguistic expressions can encode and transmit information and, thereby, erroneously assumes that meanings determined by the means identified in the immediately preceding sentence “convey” information that can be accessed by decoding. Unfortunately, meanings ascertained by the means identified above (1) are not informational meanings and (2) are not the meanings that a communicator means, that is, ultimately desires, intends, expects, and relies on his or her audience to comprehend. The meanings that can be so determined [by the textual approach] are inescapably arbitrary, ideolectical, default, non-informational, starting points for beginning the process of comprehending the meanings qua information that a speaker or writer ultimately desires, intends, expects, and relies on the audience to comprehend. [3]

Textualism leads to all kinds of absurdities in legal interpretation. At worst, the Humpty Dumpty[4] school of linguistics prevails.

“When I use a word,” Humpty Dumpty said in rather a scornful tone, ”it means just what I choose it to mean–neither more nor less.“

”The question is,“ said Alice, ”whether you CAN make words mean so many different things.“

”The question is,“ said Humpty Dumpty, ”which is to be master–that’s all.“

At best, the interpreter (often a judge) is free to assign any meaning he chooses to a word or a sentence. In particular, he may assign a meaning that reflects his own prejudices or advances his own private interests. This is the Humpty Dumpty theory of interpretation dressed up in fancy clothes.

From this discussion on textualism, it should be obvious that this writer would never vote to confirm an appointee of the textualist persuasion. Textualism is an intellectual scam that allows a judge to twist words as he pleases. In fact, I would go even further and state that any judge that professes to believe in the primacy of textualism is not fit for the bench.

  1. Roe v. Wade, 410 U.S. 113 (1973),  ↩

  2. I assume that the writers’ position reflects the position of the Jesuit order. That may or may not be true.  ↩

  3. J. Gordon Christy, “Why Should None of Us Now Be Textualists (abstract)”, p. 3, Manuscript is in the possession of the author.  ↩

  4. Carroll, Lewis, Through the Looking Glass, Chapter VI, accessed 9/29/2018  ↩

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