Mohamad v. Palestinian Authority and the (Partial) Triumph of Textualism
The Supreme Court decided an important but largely overlooked case this week – Mohamad v. Palestinian Authority. That decision held unanimously that the Torture Victim Protection Act (TVPA), which provides a civil cause of action for torture and extrajudicial killing, allows suit only against human beings and not against entities such as (in the case itself) the Palestinian Authority and (by extension) corporations. (The SCOTUSBlog summary is here).
Mohamad is significant for international human rights litigation, since plaintiffs had sought to use the TVPA, in conjunction with the Alien Tort Statute, to bring cases against multinational corporations – a strategy now apparently foreclosed as to the TVPA. (The viability of the Alien Tort Statute for such cases rests on the re-argument next term of Kiobel v. Royal Dutch Petroleum Co.). More importantly, though, Mohamad illustrates the present Court’s overwhelming textualist orientation in statutory cases. The decision turned principally – almost entirely – on the fact that the TVPA uses the term “individual” to describe who may be a defendant; the Court found that “individual” could not be read to encompass entities, looking specifically at the way that term was used elsewhere in the statute and the way it was used in other statutes, including especially those enacted around the same time.
Mohamad's approach is notable because a contrary holding, based on the TVPA’s general purpose, is quite plausible. “Dynamic,” “purposive” or “teleological” theories of interpretation reject a strict reading of text to implement an act’s broader purpose. Here, Congress’ purpose in enacting the TVPA was to remedy torture. Indeed, the TVPA was likely a partial implementation of the Convention Against Torture, a multinational treaty which has a broad scope and which refers to civil remedies without regard to the character of the perpetrator, saying without limitation (Article 14.1) that “[e]ach State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation.” When the TVPA was enacted in 1992 the role of corporations and other non-state actors as defendants in human rights litigation was not well-appreciated, as those suits became common only later (see here). So while the 1992 Congress likely was not thinking of corporations as potential TVPA defendants, allowing TVPA suits against corporate defendants falls within the statute's general purpose, as subsequent events have shown.
That such a plausible “purposive” interpretation of the TVPA could not gain even one vote shows how thoroughly textualist thinking dominates the Court’s statutory interpretation. True, some older broadly written statutes continue to be treated as invitations to common law lawmaking. But for more ordinary statutes – even in a dispute with a sympathetic party and wide-reaching practical significance – the Court’s foremost concern is the meaning of specific language in the text.
One might say that the current Court is simply unsympathetic to international human rights. But consider the 2010 case Samantar v. Yousuf, which unanimously rejected immunity for an international human rights defendant under the Foreign Sovereign Immunities Act (FSIA). A long line of court of appeals cases had read the FSIA to protect government officials as well as sovereign entities in order to implement a broad congressional purpose of codifying all immunity claims, notwithstanding a poor fit with the Act's literal language, which encompassed only entities. In Samantar the Court rejected the “purposive” reading to confine the FSIA what it actually said (and thus allowed the suit to go forward).
These results reflect a significant shift in thinking about statutory questions. Thirty years ago decisions like Mohamad and Samantar would have been derided as “crabbed,” “literalist” or “clause-bound” (no doubt they still are in some academic circles); they surely would not have been unanimous, and they might well have come out differently. They are, though, the new standard at the Court, where the currency is the statute’s specific text as understood by the Congress that adopted it, not pragmatic effects and appeals to broader purposes that might justify a more flexible approach.
A further question, then, is the connection between statutory textualism and constitutional originalism. Mohamad and Samantar are basically instances of text-based originalism applied to statutes: they ask, what is the most likely meaning of particular words, as used in the context in which the drafters used them? They don’t try to update the statute or employ an "evolving" meaning of it, even where a good case could be made for doing so; they apply the statute as written. Constitutional originalism, in its most plausible form, takes this approach as well, as applied to the Constitution.
That move, though, is controversial. Many people who would accept Mohamad and Samantar don't accept constitutional originalism. Why is the Constitution different? Of course one might say it isn’t, and that the rise of statutory textualism presages a parallel shift in constitutional interpretation. To some extent that may be true, but for various reasons translating the textualist approach to the Constitution seems a higher hurdle. These reasons might include:
1. Constitutional language is more open-ended that most statutory language (and open-ended statutory language gets a more dynamic interpretation). Perhaps, but some parts of the Constitution are not open-ended; shouldn’t they, at least, be treated like statutes?
2. The Constitution was intended to be given a dynamic interpretation while most statutes aren’t so intended. Perhaps, but the supposed intent seems more speculative than proved. More likely, the Constitution’s drafters wrote down rules for the same reason that Congress writes rules – to bind future actors on the drafters’ terms.
3. The Constitution is more remote in time than most statutes; thus its textual meaning is much more indeterminate and a text-based approach is impractical. Again, perhaps so, but high-quality originalist scholarship has given better understanding of historical meaning of many (though of course not all) constitutional provisions.
4. The Constitution is much harder to change, so we’re less comfortable with relying on political fixes to “bad” results and instead feel that the Court is more in need of an “updating” power. This seems the most plausible argument, although it likely overstates how easy it is to change statutes and understates how easy it is to change the Constitution.
Regardless, it’s worth thinking about whether statutes and the Constitution are different categories of law meriting wholly different treatment, or whether as legal documents their core interpretive approach should be similar. The flourishing of textualism (at the expense of dynamic interpretation) in statutory cases, as reflected in Mohamad, puts this question especially sharply.