Emergent Order and Textualism
Constraints can improve a complex system
Earlier this week I had the fortune to participate in a terrific discussion about decentralized technologies and how government regulators might adapt to them. Our panel attempted to answer: Can Regulators Handle the Mastodons of the World? Check it out. I will share my own summary of panel in the coming days. On to today’s content…
A few weeks ago, Americans For Prosperity Foundation signed on to an amicus brief in the Supreme Court case Gonzalez v. Google. The brief, written by the Center for Growth and Opportunity, focuses on two main arguments. First, the text of Section 230 clearly protects services that “pick” and “choose,” “organize” and “reorganize,” and “forward” content of others from being liable for that content. Second, Section 230 enables a robust marketplace of ideas, including for conservatives. You can read more about the brief and the case here.
What does this have to do with emergent order? I could take this many directions, but I want to focus on the textualist methodology employed in CGO’s first argument and its relationship to emergent order.
Arizona Supreme Court Justice Clint Bolick describes the legal practice of textualism thus:
A textualist endeavors to give effect to the words of the Constitution and statutes. If the meaning of the words is clear, the judge goes no further. If they are ambiguous, the judge attempts to discern their meaning using well developed rules of construction.
Textualism isn’t the only legal interpretive method. Another commonly considered method is “original intent” or “originalism”, which seeks to understand Congress’s intent in passing the statute, as reflected in the congressional record or other non-statutory documents. Originalists might try to execute that intent even when Congress “messed up” and the plain meaning of the text is different than what Congress intended. Other methods of statutory interpretation include Living Constitutionalism (interpreting the Constitution and other legal texts in light of the evolving norms and values of society); Intentionalism (seeking to discern the intent of the lawmakers who drafted a statute or legal text); Contextualism (considering the context in which a statute was written and the purpose it was intended to serve); and Pragmatism (interpreting the law in a way that promotes practical solutions to legal problems).
Textualism is a - perhaps the - dominant paradigm for interpreting legal text. Justice Elena Kagan famously stated, in honor of Justice Antonin Scalia, that “We’re all textualists now.”
Yet textualism isn’t a very useful way to interpret many kinds of written material. Poems, for example, or comedy. Most types of fiction have non-literal meanings, and those meanings are important and “valid.” In those types of writing, subtext and context are often as important as text. Frequently, a good reading of such text relies on what the reader is bringing to it and how they individually understand it.
But in law, the function of textual interpretation isn’t creative expression or drama or revealing something about the reader. For those who seek a rule of law, where all persons stand equal before the law, rather than some standing above it, the goal of written law is to convey a clear and consistent message to all who would read it.
As anyone who has drafted (or read!) a contract knows, it is very difficult to write something that can only be interpreted in one single way. No, let me rephrase: writing words that everyone will interpret to mean the same thing, across long spans of time, is impossible. Language itself is an emergent system. Meaning emerges from the collective effect of billions of individual interactions with words and other symbols. Yes, language communicates meaning between minds - but this function is not deterministic.
Although it is impossible to perfectly communicate ideas in language, it is also obvious that it can be done better and it can be done worse.
If we take a systems view of the law, we should want feedback loops that incentivize authors of legislation to be as precise and clear as possible in conveying their intended meaning.
Textualism is a feedback mechanism that improves the law over time. First, it enhances the feedback loop, incentivizing drafters to do their very best to say what they mean. Second, it also reinforces the specialization of labor and balance of powers established by the Constitution.
Courts could “correct” perceived mistakes by Congress by reinterpreting the text via a gloss from the congressional record or reinventing the statute in light of public commentary or even their own judgement. But if courts do so, this would undermine the proper roles of both the judiciary and the legislature. It would make the judiciary more like a legislature. Most importantly, it would protect Congress from the feedback that would otherwise spur them to draft legislation with more precision.
But when courts adopt a textualist approach, they incentivize congress to draft more precise legislation, and therefore to better communicate the meaning of the law to those individuals subject to it. And that promotes the rule of law.