The recent opinion of the DC Circuit Court concerning Obamacare, issued in Halbig v. Burwell, has highlighted a legal approach to interpreting laws which is called "Textualism." In Halbig v. Burwell, the majority of the court concluded that Federal health insurance subsidies provided by Obamacare did not apply to insurance exchanges created by the Federal government. They based their conclusion on the fact that the statute's language concerning subsidies referred to exchanges "established by the State." It was their view [pp. 31-32] that the text of the law was clear on this point, so there was no need to consider legislative intent, which would only be a secondary consideration anyway, in the event of an "odd result" from a literal interpretation.
This is pretty much the approach championed by Supreme Court Justice Antonin Scalia. In Green v. Bock Laundry Mach. Co., [490 U.S. 504, 528 (1989) Scalia, J., concurring], Scalia asserted that
The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated-a compatibility which, by a benign fiction, we assume Congress always has in mind. I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a result different from the one that these factors suggest.
Apparently the intention is to divine what the "whole Congress which voted on the words of the statute" understood to be the meaning of the statute, assuming that their only consideration when they voted was the ordinary usage of the words before them, history and discussion be damned.
I want to point out in this diary what I see as the inherent unreasonableness and injustice of Legal Textualism.
Legal Textualism assumes that laws rely only on ordinary meanings
By relying upon "ordinary usage" for interpretation, Textualism assumes that Congress only uses words in their ordinary sense when writing laws. That might be desirable, but Congress is not restricted to writing laws using only ordinary meanings.
Legal Textualism assumes that there is only one ordinary meaning
A word can have several meanings in English. Which is its "ordinary" meaning? Take the word "State," for example. The Textualist judges in the Halbig case took the statute's reference to exchanges "established by the State" to mean that it applied only to exchanges created by individual States within the United States of America. But "State" has another plain meaning in English:
"A political body, or body politic; the whole body of people who are united under one government, whatever may be the form of the government; a nation."
By that definition, an insurance exchange created by the Federal government is also "State-based." And it is well within the context of that Federal statute.
But the majority in Halbig chose instead to wander through a semantic thicket of sections and clauses to parse what they supposed to be the "plain" meaning of the statute [see pp. 16-22, for example]. If the meaning was plain, would that be necessary?
Legal Textualism invites judicial caprice in deciding meanings
How else can one explain the Citizens United decision, in which the ordinary meaning of "speech" is interpreted as "money?" Decisions like this lead me to think that legal textualism is merely a conviction of convenience, applied only when it is expedient to do so.
I think the majority opinion in the Hobby Lobby decision proves this. The majority opinion relied on an interpretation of "person" derived from rulings on the Religious Freedom Restoration Act (RFRA), but ignored the fact that this definition of "person" does not appear in the U.S. Constitution. Nor is it the "ordinary meaning" of the word "person" for most English-speakers. David Green, the founder of Hobby Lobby, is a person. But "Hobby Lobby" is not David Green. It was a legal creation of David Green. As such, "Hobby Lobby" is neither a natural-born citizen nor a naturalized citizen, the only clear and ordinary usages of the word "person" in the US Constitution. [See also the 14th Amendment]
I cannot escape the conclusion that the Court's conservative majority avoided textualism on this occasion so they could impose their religious ideology upon the nation.
Legal Textualism assumes human infallibility
I can hear the objection: "Congress should take greater care in its construction of laws!" But, of course, if the world was as it should be, there would be no need for laws -- or for judges.
Scalia himself has made a mistake in citing a previous decision. So did Justice Stevens, I'm told. Of course, their mistakes can be resolved with mere editing. Supreme Court Justices place a greater burden on Congress and the President when they (selectively) pounce upon statutory oversights and typographical errors. Can't the import of a law be discerned without the necessity of creating new laws to elucidate previous laws? I guess literalism precludes that.
Failure to consider non-literal meanings can lead to dangerous conclusions
Ultimately, the limitations imposed by Textualism can be absurd and dangerous. For example, our Constitution says nothing about establishing an Air Force. It only refers to armies, militias, and land and naval forces.
Textualism would therefore disallow the existence of this branch of the military, would it not? I think that's the best reason for dispensing with this approach. It forces us to approach the 21st Century with an 18th Century dictionary.
I know my thoughts carry little or no weight, but I felt a need to express them.
What is the ordinary usage of this gesture? "Read between the lines?"