« July 2017 | Main | September 2017 »

36 posts from August 2017


Justice Arthur Kelsey: Bracton’s Warning and Hamilton’s Reassurance
Michael Ramsey

In the current issue of the Virginia Lawyer, Justice D. Arthur Kelsey (Supreme Court of Virginia): Bracton’s Warning and Hamilton’s Reassurance.  From the introduction:

In honor of our Constitution, I would like to discuss a jurisprudential debate that began in 13th-century England and has continued to this day. The debate centers on a single question: What is a judge’s role in the interpretation of our Constitution?

Thomas Jefferson once famously said: “Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.” What did Jefferson mean by that? How could judges construe the Constitution in a way that renders it a blank piece of paper?

And from later on:

[The Historical Tradition Model] requires the judge to look at the text of the Constitution, and if it is unclear, the judge tries to discover not what the text ought to mean but what it did mean to those who wrote the words and, more importantly, to those who voted for those words to become law. In a democratic republic, words become law only when the true sovereign elevates them to that status. The first line of the Constitution declares that “We the People of the United States, in Order to form a more perfect Union,” created the federal government and granted it limited delegable powers.  The creator is always greater than the creation. “We the People” are sovereign — not the government.

In the Historical Tradition Model, law retains its democratic legitimacy only when judges interpret the words as they were understood at the moment of their elevation by the collective sovereign, “We the People.” The constitutional text, James Madison explained, should be interpreted as “it had been understood by its friends and its foes” at the time of its adoption and ratification because “[i]n that sense alone it is the legitimate Constitution.”

In Federalist No. 40, Madison reinforced this point by reminding us that the work of the Framers at the Philadelphia Constitutional Convention was “merely advisory and recommendatory” because they were “mere scriveners or attorneys appointed to draw up an instrument; the instrument’s true makers were the people of the United States assembled in state conventions.” Only when the people adopted and ratified the Constitution did the words become law.

Whatever you think of the Historical Tradition Model, let me remind you of Winston Churchill’s famous quip that “democracy is the worst form of Government except all those other forms that have been tried from time to time.” A similar sentiment, I believe, applies here to lift the Historical Tradition Model above its three competitors [Ed.: previously discussed as the "Oracle Model", the "Platonic Guardian Model" and the "Popular Culture Model."]  Each of them, to one degree or another, involves interpolating meaning into a legal text instead of interpreting meaning from the text. As a result, the first three models simply liberate judges to construe an ambiguous constitutional text so that it means what it ought to mean, what it should mean, what it would mean if they — the judges — had written it.

How is it possible to follow any of these other three models without, consciously or not, injecting politics into law? No matter which way you answer that, this much is sure: Many Americans today are deeply suspicious about the role of politics and its influence on the courts. Sometimes this suspicion is terribly unfair; at other times, it is entirely understandable.


Gerard Magliocca on Ratifying the Equal Rights Amendment
Michael Ramsey

At Concurring Opinions, some interesting questions from Gerard Magliocca.  First: The Ratification of the ERA. From the introduction:

A few months ago, Nevada ratified the Equal Rights Amendment proposed by Congress in 1972.  I have no idea if this was done for symbolic reasons or from a genuine desire to see the ERA ratified.  Nevada’s action, though, raises an interesting constitutional problem about ratification deadlines.

In some constitutional amendments, the amendment’s text says that the proposal is not ratified unless enough states approve within seven years. In other amendments, the deadline is in the resolution proposing the amendment rather than in the amendment itself. The ERA falls into the later category.  Not enough states ratified the ERA in the seven year period, and not enough have done so now even with Nevada’s yes vote.

Suppose, though, that a few more states ratify the ERA. Enough that there is no doubt that there are 38 yes votes.  Can Congress then repeal the original time limit and declare the amendment valid?

And further: The Original Understanding of the ERA. From the introduction:

Following up on my last post, suppose that the Equal Rights Amendment is somehow ratified. How should we interpret a text proposed in 1972 and ratified, say, 50 years later?

The 27th Amendment presents this issue in an even more acute way (proposed in 1789 and ratified in 1992). That amendment, though, is so specific and so rarely litigated that the 200-year-span is not a practical problem.

Not so for our hypothetical 28th amendment. So what should we say here?


David Strauss Guess What: You are an Originalist After All
Eric Segall

[Editor's note:  For this guest book review, we welcome Professor Eric Segall, the Kathy and Lawrence Ashe Professor of Law at the Georgia State University College of Law, and a prominent critic of originalism.]

The most recent entry in the “originalism is our law” sweepstakes is Ilan Wurman’s “A Debt Against the Living: An Introduction to Originalism.”  [Ed.:  see also here for a podcast discussion of the book.]  This 135-page book is an excellent “introduction” to many difficult questions pertaining to constitutional interpretation.  However, as is the case with so much scholarship these days, its conclusions are “originalist” only if originalism and pluralistic theories of constitutional interpretation, including what the author refers to as “living constitutionalism,” are one and the same.

The book tackles two important questions: how should we read the Constitution, and is the Constitution worth keeping today. The author has a wonderful Hemmingwayish turn of phrase which makes the style of the book accessible to any reader interested in constitutional interpretation. Law students would benefit from reading the book (provided they are well-supervised, see below).

Wurman argues that we first need to understand what the Constitution says before we can decide whether to keep it. I’m willing to go with that chronology as a logical matter, but this review tackles the second question first.

Wurman describes three major theories of constitutional legitimacy: the “libertarian school,” the “progressive-originalist school,” and the conservative school.” (p.47). Libertarians argue that the Constitution “must protect natural rights.” Progressive-Originalists believe that the Constitution “must allow for responsiveness to contemporary politics.” Conservatives believe that legitimacy “is rooted in an act of popular sovereignty when the people ratified the Constitution in 1789.” (pp. 48-49). These theories correspond to the work of Randy Barnett, Jack Balkin, and Keith Whittington, Mike Rappaport and John McGinnis, respectively.

The descriptions are as accurate as 18 pages will allow. Wurman treats each scholar fairly and concludes that the Constitution is legitimate because each theory has something important going for it. He concludes that if “the Constitution protects natural rights, creates a republican form of government, and is rooted in an act of popular sovereignty, then prudence demands that we obey it today, whatever its imperfections.” (p.81).

Fair enough, though I wish Wurman had spent more time than he does on the exclusion of women and minorities from the ratification processes. His essential response is a shrug of the metaphorical shoulder. Well, no one is perfect and we must accept the founders’ world that they were living in not some make-believe place: “The Founding was as legitimate as could be for its time.” (p.64). Maybe, but the question is whether the Constitution is legitimate today, not in 1787 when only white males could vote and hold most important jobs.

The other half of the book explains why we should all be originalists. Wurman again accurately describes the major justifications originalists normally employ. In a nutshell, Wurman argues that Randy Barnett and others argue that the fact that the Constitution was written down shows that the people who ratified it intended it to govern our behavior until the document was changed. Therefore, it only makes sense to interpret the document as it was originally intended (pp.26-27).  Moreover, all communication, according to Wurman and Keith Whittington, is “always interpreted by its original public meaning” because that is the very nature of the act of communicating (p.29-31). Finally, “rule of law” values such as consistency and transparency require “that we live by those public meanings.” (p.31) Put all three elements in a hopper and presto we have originalism!

This is much more controversial than Wurman allows (other countries with written constitutions don’t see originalism as inevitable) but I will let some other reviewer take that on. The more important aspect of the book is Wurman’s discussion of how judges should interpret the Constitution and the relationship between “interpretation” and “construction.”

Wurman explains that many modern originalists believe that in many (maybe most) litigated constitutional cases, the text and history will be too vague, ambiguous and/or contested to resolve today’s pressing problems. Thus, determining what the Constitution meant at ratification is “interpretation” but deciding what legal effect that interpretation yields given a certain set of facts is “construction.” (p.20). Although originalism may limit the range of plausible meanings, it will nevertheless “run out” when a judge is trying to answer a specific constitutional question. (p.20).  In that case, what is a judge to do?

Again, Wurman faithfully describes the dominant originalist replies to this problem. Randy Barnett thinks judges should construct constitutional outcomes with reference to a strong presumption of liberty; Judge Bork thought that we should presume legislation is constitutional if text and history don’t clearly show that it isn’t; and McGinnis and Rappaport (who deny the interpretation/construction distinction) argue that judges can use “original interpretative conventions” such as cannons of interpretation to resolve hard cases. (pp.84-96). Wurman makes a compelling case that, as these scholars all suggest their answers are grounded in text and history, construction really is originalist after all. (pp.86-87). Fair enough.

Although Wurman leans towards the “original interpretative methods” theory, he sees value in all three and concedes that “different contexts might require use of one or the other.” (p.94). He then asks the question we have all been waiting for: “what do we do when we’ve used all our interpretative rules and cannons and the constitutional answer still isn’t clear?” (pp. 94-95). Before we examine his answer, we must circle back to what Wurman says generally about originalism and living constitutionalism.

Throughout the book, Wurman criticizes Professor David Strauss and his theory of common law constitutional decision-making. In the first several pages of the book, Wurman argues that Strauss sides with Thomas Jefferson who famously said, “The earth belongs to the living, and not to the dead.” (pp.1-2). Strauss describes the Supreme Court’s constitutional doctrine as similar to the common law model where precedent, not text or original meaning, plays a dominant role (p.122). In turn, Wurman describes this as a “living constitutionalism” model and strongly implies that it gives too short shrift to the original meaning of the text. The problem with Strauss’ theory is that “it is unclear why judges should be permitted to make freewheeling policy choices contrary to the policy choices of our representatives ….” (p.124).

Okay, so how does Wurman suggest judges decide hard cases. His answer comes in two parts. First, he embraces the notion of “liquidation.” He concedes that the “first few times” a judge has to resolve a hard constitutional issue, he will choose “among the competing plausible options.” (p.95). This choice will “in some sense be arbitrary.” (p.95). Over time, however, after “a series of mature deliberations made by many constitutional actors,” similar “cases within that same context will presumably accord such collective decisions determinative weight and the matter will be settled.” (p.95). How this liquidation method of constitutional decision-making is different than Strauss’ common law constitutionalism, which Wurman describes as living constitutionalism, is elusive at best, and Wurman never tells us.

Wurman’s second answer to the hard cases problem (read virtually every constitutional case the Supreme Court decides) revolves around Professor Christopher Greene’s “sense-reference” distinction, and Wurman’s rejection of original expectations originalism. An originalist is not bound by what the people living in 1787 or 1868 expected the text to mean in concrete factual situations, except for those provisions where the text is clear such as the President must be 35. For the unclear provisions (the ones that lead to litigation), the Constitution “enshrine[s] a sense that does not change with time. But the facts and conditions to which the sense applies-the referents of the constitutional provisions-can change.” (p. 40.).  Wurman goes on to argue that “we are not bound by [the framers’] factual errors.” (p.114). Thus, and this is familiar territory to people well-versed in the originalism debates, the “sense” of the Fourteenth Amendment is equality, and if the people in 1868 made the factual error of thinking segregation was consistent with equality, judges in 1954 may correct that “error” consistent with originalism. (p. 113-115).  To be fair, Wurman also discusses Michael McConnell’s historical justification for Brown and Michael Klarman’s response (pp. 110-1130), but at 5 pages he doesn’t do justice to that debate.

In hard cases, judges should look to prior judicial doctrine and decisions made by other constitutional actors to see if the meaning of the text in issue has been liquidated. If not, judges are free to determine the “sense” of constitutional provisions, which in the case of the equal protection, due process, and privileges or immunity clauses, basically means equality, fairness, and identifying fundamental or natural rights, to come up with the best constitutional solution. This is, of course, common law constitutionalism and living constitutionalism all the way down. In Wurman’s own words: “Originalists recognize that original meaning often requires that the application of the text evolve as modern circumstances evolve, more still, they often recognize that originalism doesn’t always lead to specific answers. Conversely, living constitutionalists almost universally agree that the text and its original meaning matter in constitutional interpretation-even though they think original meaning is less determinate than originalists tend to think and that it should be less dispositive.” (p.8).

The last disclaimer is a non-starter. The Court’s actual constitutional law docket cannot be answered through original meaning in any serious sense, and virtually all living originalists concede that where the Constitution is crystal clear, judges should normally apply that meaning. The originalism debate only matters to those cases likely to reach judges. In that subset of cases, we are all living common law constitutionalists as Wurman describes, which is maybe why Wurman says at the beginning that “to my liberal readers, take heart! You might find that originalism as it is now understood is quite an attractive theory (p.8).  Guess what David Strauss, you are an Originalist after all, “as originalism is now understood.”

No, not really. The truth is that Randy Barnett, Jack Balkin, Will Baude, and most “New Originalists” are actually living constitutionalists, as many of us have been arguing all along.

Approaching Deadline for Submissions for the 2018 Originalism Works-in-Progress Conference
Michael Ramsey

On February 16-17, 2018, the Center for the Study of Constitutional Originalism at the University of San Diego School of Law will hold the Ninth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference.  The conference will include approximately 6 or 7 unpublished papers on originalism, with commentary from invited scholars, and then questions from the other participants at the conference.  The Call for Papers page is here

The deadline to submit abstracts/drafts for the 2018 Originalism Works-in-Progress conference is August 31, 2017 (a week from Thursday).

Submissions should take the form of a one to three page abstract (and, if you like, an initial draft).  The Originalism Center will select an appropriate range of papers to be presented at the conference.  Please send submissions to the originalism center director, Mike Rappaport (mrappaport@gmail.com), or to me.


Lawrence Solum: Corpus Linguistics, Immersion, and the Constitutional Record
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record on SSRN.  Here is the abstract: 

This Essay contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows: 

(1) The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice.

(2) The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of the authors and readers of the constitutional provision being studied.

(3) The Method of Studying the Constitutional Record: The method of studying the record framing, ratification, and implementation requires the researcher to examine the drafting process, including sources upon which the drafters relied, debates during the drafting and ratification process, and the early history of implementation of the constitutional provision.

These three methods each provide different inputs into the process of constitutional interpretation and construction. Because each method can be checked against the others, the combination of the three methods results in what can be called "triangulation."


Introducing Originalism: A Conversation with Ilan Wurman
Michael Ramsey

From Law and Liberty podcasts, Introducing Originalism: A Conversation with Ilan Wurman:

Ilan Wurman joins this edition of Liberty Law Talk to discuss his new book, A Debt against the Living: An Introduction to Originalism.

From a prior post:  Here is the book description for Ilan Wurman's new book:

Thomas Jefferson famously wrote that the earth belongs to the living. His letter to James Madison is often quoted for the proposition that we should not be bound to the 'dead hand of the past', suggesting that the Constitution should instead be interpreted as a living, breathing document. Less well-known is Madison's response, in which he said the improvements made by the dead - including the US Constitution - form a debt against the living, who benefit from them. In this illuminating book, Ilan Wurman introduces Madison's concept of originalism to a new generation and shows how it has shaped the US Supreme Court in ways that are expected to continue following the death of Justice Antonin Scalia, one of the theory's leading proponents. It should be read by anyone seeking a better understanding of originalism and its ongoing influence on the constitutional jurisprudence of the Supreme Court.


Emoluments Clause Originalism from Daniel Hemel and Leah Litman
Michael Ramsey

Daniel Hemel (Chicago) and Leah Litman (UCI) at Take Care Blog: The Plaintiffs in CREW v. Trump Deserve To Have Their Claims Heard. From the introduction:

The Trump Justice Department has told a federal district court in New York that it lacks jurisdiction to hear the claims of plaintiffs who are challenging the President’s violations of the Emoluments Clauses in Citizens for Responsibility and Ethics in Washington v. Trump. On Friday, we and 19 other scholars of administrative law, constitutional law, and federal jurisdiction joined an amicus brief explaining why the Trump administration’s arguments miss the mark. The brief, filed by New York attorneys Andrea Likwornik Weiss and Gregory Felt, is available here, and you can see a full list of amici in the appendix. As we conclude: “Under settled Supreme Court and Second Circuit case law, the plaintiffs easily clear the constitutional and prudential hurdles to the adjudication of their substantive claims.”

Our brief only addresses whether the district court should resolve the case on the merits; other amicus briefs (from legal historiansmembers of Congressformer government ethics officers, and a leading scholar of public corruption) address the substance of the plaintiffs’ claims under the Emoluments Clauses. That might make the arguments in our brief seem like a sideshow to the main act, but we think they’re more than that—for two reasons. First, the Justice Department spends more than half of the argument section in its motion to dismiss urging the district court to dismiss the case on justiciability grounds. That is, the administration’s primary strategy is to try to make the case go away before the district court considers the merits. Second, if the district court reaches the merits, it will confront a mountain of historical evidence indicating that payments to President Trump’s businesses from foreign and domestic government clients fall within the meaning of the word “emolument” as the founding generation would have understood it. Thus, if Trump loses the fight over justiciability, he will have a very tough time winning the next round.

The brief's standing argument is purely doctrinal but look again at the last two sentences in the introduction: "if the district court reaches the merits, it will confront a mountain of historical evidence indicating that payments to President Trump’s businesses from foreign and domestic government clients fall within the meaning of the word 'emolument' as the founding generation would have understood it. Thus, if Trump loses the fight over justiciability, he will have a very tough time winning the next round."  That's pure originalism (and indeed basically pure textualist original meaning originalism) from two conventional scholars at top law schools.  Again, originalism is part of our law.


Rob Natelson on a Convention of the States
Michael Ramsey

In The Hill, Rob Natelson: How a ‘convention of states’ could tweak the Constitution. From the introduction: 

Representatives of state legislatures from across the nation will converge in Phoenix, Arizona on Sept. 12 to participate in a traditional American institution called a “convention of states.” 

Conventions of states are valuable. They help ensure Washington, DC doesn’t dictate all decisions on every subject. 

The purpose of the meeting in Phoenix is to plan for another, even more important convention — one to propose adding a balanced budget amendment to the U.S. Constitution. The latter event is likely within the next two to three years. ... 


A Mea Culpa Regarding Fourth Amendment  Seizures Without Searches
Andrew Hyman

Mark Pulliam recently repudiated an old outdated opinion of his in support of Lochner, as mentioned here at the Originalism Blog.  Mark's essay reminded me that I need to follow in his footsteps, by confessing an old error in a footnote to a law review article of mine over a decade ago.  It's an interesting issue, so why not blog about it?  

Here's what I wrote a long time ago: "the Fourth Amendment does apply to searches without seizures, as well as to seizures without searches...."  I now think the latter part is probably wrong.  However, it remains part of standard doctrine; for example a 2015 treatise on constitutional law stated, "There can be searches without seizures and seizures without searches, and the Fourth Amendment imposes separate requirements for each."  

Here's what the Fourth Amendment says (emphasis added):  

The right of the people to be secure in their perons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Notice the conjunction "and" that I have put in bold, as distinguished from the word "or."  The Amendment would apparently have imposed a general reasonableness requirement on seizures that do not involve searches, had the conjunction been "or" instead of "and."  If police engage in a search that results in no seizure, then I agree with standard doctrine that the constitutional reasonableness requirement applies, because the object of the search is a seizure even if the latter does not end up happening.  But what about a seizure that is not the result of any search --- not even a search for another thing under the plain view doctrine? 

Consider an example of a seizure without a search that would have been familiar in 1792 (when the Bill of Rights took effect): the arrest of a person in public without searching him.  Suppose a man is arrested like that after he very obviously dumps trash on a public sidewalk.  In this "trashy" example, I now doubt that the Fourth Amendment applies to seizing (i.e. arresting) that man; if it does not apply then judges cannot scrutinize the anti-littering statute for reasonableness, nor can judges strike down that anti-littering statute because they think it unreasonably lacks an exception for a man who dumps trash on a public sidewalk after the trash was first dumped illegally on his own adjacent private property.  If the Fourth Amendment does not apply to an arrest in public without any search, then of course the person who is arrested still can resort to other constitutional rights including habeas corpus, the right to indictment (in federal court), and speedy trial.

According to Eric R. Carpenter, "Seizures Without Searches: Defining Property Seizures and Developing a Property Seizure Model", 41 Gonz. L. Rev. 167 (2013), the first U.S. Supreme Court case regarding a "pure property seizure" without any search was United States v. Place, 463 U.S. 696 (1983).  In that case, the Court held that a police dog sniffing suitcases in a public place is not a "search" under the Fourth Amendment.  The luggage had been seized for 90 minutes prior to the dog sniff.  After the sniff alerted the dog to narcotics, the police obtained a warrant, the luggage was searched, and Mr. Place was arrested.  Although the Court held that the pre-warrant sniffing was not a "search," it nevertheless held that the length of the 90-minute pre-sniffing seizure was unreasonable and therefore unconstitutional.  Assuming the Court was correct that a dog sniff is not invasive enough to be a search, could the Fourth Amendment be applicable to a seizure of luggage in public without any search?  I used to think so.  Now I doubt it.

Of course, the police should have and could have gotten the luggage sniffed faster, and maybe that delay was unreasonable in every sense of the word, but perhaps the Fourth Amendment does not ban unreasonable seizures that did not result from any search, instead leaving legislators and law enforcement officers and state constitutions with the (immense) power of determining reasonableness under such circumstances.   There's also the Takings Clause to bar police from simply grabbing from you whatever they want. 

The Constitution does not say "unreasonable searches or seizures." Moreover, it says that any valid warrant must describe "the place to be searched", which would be impossible if no search is involved.  

So, I withdraw my old statement that the Fourth Amendment applies to pure seizures without searches, because I'm not so sure anymore.  Incidentally, the notion that the Fourth Amendment may not apply to "pure" seizures also has implications for seizures that do result from searches.  In particular, supposing that there must be some sort of search for the Fourth Amendment to apply, the reasonableness analysis ought to focus mainly on the search and its relationship to the seizure, rather than on the seizure by itself, because it would be rather absurd to say that a particular type of seizure would be constitutional if unaccompanied by any search, but would be unconstitutional if accompanied by the most reasonable possible search.  

More from Asher Steinberg on Textualist and the Supreme Court's 2016 Term
Michael Ramsey

Asher Steinberg at The Narrowest Grounds: Supreme Court 2016 Term in Review: (Apparent) Mistake, Another Textualist Possibility Unexplored in SW General.  From the introduction:

Have you ever said to someone, "I don't think that means what you think it means," or more declaratively, "that doesn't mean what you think it means"?  If so, you're familiar with the concept of linguistic mistake, as distinct from linguistic accident, or what lawyers call scrivener's or drafting error.  When you tell someone that what they said doesn't mean what they think it means, what you mean is that you think they intended to say precisely the words they said, but that, because they seem to intend to convey something other than what they said means, they are likely mistaken about the meaning of the words they said.

For example, if a wise but unpolished student writes on an exam, "the Court shouldn't of avoided the Chevron question in Esquivel-Quintana, that was a really lame move," it is possible that the student intended both to use a semicolon and write "shouldn't have" and accidentally wrote "shouldn't of" and used a comma in a hurry.  But it is just as possible and probably more likely that this student intentionally wrote "shouldn't of" because he mistakenly believes, as many people do, that "shouldn't of" is a grammatical construction that means "shouldn't have," and also quite likely that the student intentionally used a comma because he mistakenly believes that commas can link independent clauses that can only be linked by semicolons.  When Congress makes that sort of an error, it hasn't engaged in scrivener's error, properly understood.  The metaphorical scrivener's metaphorical pen didn't slip; the text Congress enacted was the text it meant to enact.  Congress was just mistaken about the meaning of the words it deliberately used.

On the other hand, if your boss (or Congress) tells you to file an appeal in no less than seven days, you won't think he meant to say what he said, or is mistaken about the meaning of what he said; you'll likely believe he meant to say "more" and accidentally said less.  You won't think he mistakenly believes that "less" means more, since no one fully conversant in English does.  When Congress makes this sort of an error, it has engaged in scrivener's error.  The scrivener's pen did slip, those members of Congress and staffers who read the text didn't catch it, and Congress voted for and enacted a text other than the text it intended to enact.

And from the conclusion:

Textualists are not concerned with actual intentions, only "objectified" or apparent ones.  Actual intentions are for intentionalists.  However, for a linguistic mistake to be apparent, it first must be possible.  We simply don't know anyone who mistakenly thinks that "less" means "more," so when Congress says "no less than seven days" and seems to have meant "no more," we don't say that Congress seems to have been mistaken about the meaning of "no less"; we say that Congress seems to have accidentally written "no less" and think of the problem in terms of scrivener's error, for which we require certainty.  Linguistic-mistake readings of statutes are only viable when the mistake in question is conceivable, and to be conceivable, it helps if we know of some cases where it's happened.  One reason that it's so easy to assume someone thinks "principle" means "principal" is that many people do.  And one reason Scalia was willing to read "defendant" to mean "criminal defendant" in Bock Laundry is that people sometimes mean defendant that way "in normal conversation."  Indeed, many non-lawyers may mistakenly believe that the only people called "defendants" are criminal defendants.  Some of them are probably in Congress.

Senator Thompson, then, is relevant to a claim that Congress's apparent intention in writing "notwithstanding subsection (a)(1)" was to communicate the idea "but as to subsection (a)(1)," not because he shows that it was Congress's intention, but because he shows that it could have been the intention of a normal speaker using Congress's words.  Once you read Thompson confidently asserting that "notwithstanding subsection (a)(1)" meant that (b)(1) only limited (a)(1), not (a)(2) or (a)(3), it's no longer so hard to imagine a Holmesian normal speaker of English mistakenly thinking "notwithstanding" means "but as to."  Apparently, it happens.  

* Acknowledgements to Mitchell Berman's typology of legislative intent in "The Tragedy of Justice Scalia"—one of the few truly excellent and practically useful bits of interpretive scholarship in the last few years—for suggesting much of this post, though I dissent from his judgment of Scalia as a tragic figure.

From prior posts in this series, see here and here.