Textualism Is Not In The Text

 “… the ontology of a false condition.”--Adorno, Negative Dialectics, p.11.

Textualism is a theory of interpretation used by Originalism. The term “Textualism” was coined by Mark Pattison in 1863 to criticize Puritan theology (Wiki) for some of the very same reason that Originalism is criticized—a too narrow reading of text that ignores the larger principles, intent, and spirit of the subject. Theologians criticized Christian Protestants for allowing biblical scripture to become a “Paper Pope” and replacing genuine spirituality with a strict moralistic legalism in an idolatry of the text. Ironically, Christianity itself originated as a reaction against ancient Talmudic legalism and the rabbinic court system that regulated matters of dietary and ritual law, marriage, divorce, and social organization. Remember the biblical story of Jesus' disciples picking grain for food on a Sabbath (Mark 2:23-28 ). When the legal scholars of the time, the Pharisees, challenged Jesus over their violation of the Torah’s text to observe the Sabbath, he declared, "The Sabbath was made for man, not man for the Sabbath." Or analogously, one can say, “the constitution was made for man, not man for the constitution.”

Further parallels can be made between Christian Biblicists and secular Textualism, but our immediate concern is how this theory is being applied to interpret constitutional law. The appeal of Textualism is also an appeal to empiricism--one simply refers to the words of the text and reads the meaning. Thus, there is an unambiguous procedure, a set of objective steps, to understanding and applying the law. Likewise, the words themselves are defined by a set of operations—an empirical methodology-- to determine their meaning. This methodology is called “Operationalism” by which “the process of defining a concept as the operations that will measure the concept (variables) through specific observations.” Operationalism is characteristic of technological reasoning and scientific positivism.

One consequence of this theory of interpretation and methodology of defining linguistic meaning is a tendency to identify names, or words with their function, properties, and processes used to measure them. This identification has a profound effect on how language is viewed and used in analysis:

”In this behavioral universe, words and concepts tend to coincide, or rather the concept tends to be absorbed by the word. The former has no other content that that designated by the word in the publicized and standardized usage, and the word is expected to have no other response than the publicized and standardized behavior” (Herbert Marcuse, One Dimensional Man,1964, p.87, referred to here after as "ODM").

The principles of textualist interpretation are designed to minimized or even nullify concepts supporting legal human rights, personal freedom, and quality of life. Words, especially of normative concepts, are stripped of their larger conceptual meaning and become names only. Textualism reduces concepts even further to mere text. Thus, Universal concepts like “Freedom,” “Democracy,” “Life,” “Rights” and “Truth” are demoted, if not discarded, by a reductionist ideological empiricism that has an ulterior purpose of its own:

”This style is of an overwhelming concreteness. The “thing identified with its function” is more real than the thing distinguished from its function, and the linguistic expression of this identification…creates a basic vocabulary and syntax which stand in the way of differentiation, separation, and distinction. This language, which constantly imposes images, militates against the development and expression of concepts. In its immediacy and directness, it impedes conceptual thinking: thus it impedes thinking….”(ODM, p. 95).

"Word" and "Reason" are derived from the same Greek term "logos," but positivist Textualism leaves only the "word" and the larger ontological concept of "Reason" is excluded from its meaning. Universals are demoted to the particular. Textualist analysis is inherently restrictive, reductive, and exclusionary so to lockout normative issues and questions. This specialized methodology represses intuition, conceptual thinking, and critical analysis since its scope is limited to the concrete fixed image of written text:

”… linguistic abridgments indicate an abridgment of thought which they in turn fortify and promote. Insistence on the philosophical elements in grammar, on the link between the grammatical, logical, and ontological "subject," points up the contents which are suppressed in the functional language, barred from expression and communication. Abridgment of the concept in fixed images; arrested development in self-validating, hypnotic formulas; immunity against contradiction; identification of the thing (and of the person) with its function-these tendencies reveal the one-dimensional mind in the language it speaks”(ODM, p. 96).

Originalists argue that this exclusion of normative questions is a virtue of their methodology and that addressing normative issues is actually harmful to democracy. The interpreter's eliminationist intent is the true intent of Textualism: "The analysis is ‘locked’; the range of judgment is confined within a context of facts which excludes judging the context in which the facts are made, man-made, and in which their meaning, function, and development are determined"(ODM, p. 107). Not only is this reductionism internal in how it understands language, but also extends externally to non-textual factors by eliminating the author's intent and historical context to determine textual meanings. The historical developments of democratic values are reduced to rejectamenta of a legal formalism. We get a textual interpretation that is even proud of its ahistorical character, lacking intentionality, and references only the lexicon. Marcuse writes, "Where these reduced concepts govern the analysis of the human reality, individual or social, mental or material, they arrive at a false concreteness--a concreteness isolated from the conditions which constitute its reality. In this context the operational treatment of the concept assumes a political function"(ODM, p.106).

The resulting interpretations are highly biased being derived from the neutrality and objectivity of nihilism that re-enforces authoritarianism by default. Interpretation by this method is a highly political act in which democratic rule really means indifference to the democratic citizenship--that is to say, it is anti-democracy. Legal interpretation independent of society’s normative democratic tradition actually gives the judge greater license to apply any meaning they understand to be "plain" and "reasonable." In fact, we do not even need a judge, just an ordinary English speaking person.

“What was in the past no longer counts, only that which actually is. Oblivion is the basic trait of such a life, whose outlook upon past and present shrink so much that scarcely anything remains in the mind but the bald present"--(Karl Jaspers in the Modern Age, p.50 [trans. altered] on the rise of Nazi Fascism).

The word hermeneutics is a term derived from the Greek word for "interpreter" and is likely taken from the name of the Greek g-d Hermes, who in Greek mythology is the interpreter of the messages from the g-ds which he would sometimes mischievously change! Hermeneutics has since come to mean the theories of the interpretation and understanding of texts. By using a hermeneutical theory to interpret possible meanings of a text, it does not help deciding which theory of interpretation to apply to determine its legal meaning. There is nothing in the constitutional text itself that instructs the reader to interpret by intent, plain meaning, or as a reasonable person. Textualism is not in the text! To select one method over the other is a conscious political choice. Normative choices cannot be avoided by the very question posed, "What is the best way to interpret the text?" The law is not a hidden calculus concealed within text, but is normative in character. Interpreting text is ultimately a normative act that produces a norm, or law backed by government power. The normative and empirical components of interpretation cannot truly be separated analytically.

In the philosophical area of study called meta-ethics, the is-ought problem was posed by David Hume by stating “Is cannot be derived from ought.” Here, the ‘is’ refers to facts, and “ought” to normative, or ethical concepts that describe or prescribe what should be. Hume, the famous classical empiricist, is saying one cannot formulate a normative rule just by examining nature because “ought” statements are evaluative statements concerning a potential non-existing state. A fact can be perceived, but an “ought” is a hypothetical (subjunctive future mood) since it has not come into being yet (indicative mood), “…the tension between the ‘is’ and the "ought," between essence and appearance, potentiality and actuality--ingression of the negative in the positive determinations of logic. This sustained tension permeates the two-dimensional universe of discourse which is the universe of critical, abstract thought. The two dimensions are antagonistic to each other; the reality partakes of both of them…” (ODM, p. 97) But if only facts, minus their historical context, are recognized as the only basis of meaning, law, and understanding then normative interpretations become impossible:

”The suppression of this dimension in the societal universe of operational rationality is a suppression of history, and this is not an academic but a political affair. It is suppression of the society's own past-and of its future… A universe of discourse in which the categories of freedom have become interchangeable and even identical with their opposites is not only practicing Orwellian or Aesopian language but is repulsing and forgetting the historical reality-the horror of fascism; the idea of socialism; the preconditions of democracy; the content of freedom….The re-definitions are falsifications which, imposed by the powers that be and the powers of fact, serve to transform falsehood into truth”(ODM, p. 97).

"Facades"

by
 Philip Glass