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Tom W. Bell on Mohamad v. Palestinian Authority
Michael Ramsey

Tom W. Bell (of Chapman Law School and Agoraphilia) emails regarding my post on Mohamad v. Palestinian Authority:

I think that you missed a crucial distinction, however, between the sort of textualism routinely used in statutory analyses and the sort of textualism that originalists want to apply to the constitution.  The difference is this:  With regard to statutes, and for good reasons related to the rule of law and fundamental principles of justice, courts tend to ask, "What would someone *now* subject to this law take its words to mean?"  Originalists, in contrast, tend to ask, "What would someone at the time of ratification *have taken* the Constitution's words to mean?"

In order words, originalists ask that we adopt a peculiar form of textualism.  I happen to think it is not as good a form of textualism as the sort usually applied to statutes, which would instead have us adopt the plain, present, public meaning of the Constitution's words.  I've argued for that elsewhere [ed.: see here], and will it looks like I'll have to keep up that good fight for a long while before it catches on, so I won't get into the merits just now.  But I do think it telling that you may have overlooked the most direct application of textualism to the Constitution.

It's a fair point (and one that's related to the fact that constitutional provisions tend to be much older than statutory provisions, a point I noted in considering why statutory textualism is more easily embraced than constitutional textualism).  But I'm not sure Professor Bell is right about the dominant form of statutory textualism.  In theory anyway, I think the goal is understood as finding the meaning of the words as used by the statute's drafters, not the modern meaning, to the extent the two differ.  Thus in Mohamad, for example, the question was whether the word "individual" in the 1992 Torture Victim Protection Act (TVPA) includes entities such as the Palestinian Authority and (by extension) corporations.  While the Court's opinion talks about the "ordinary" meaning of the word "individual," it also finds especially significant the fact that statutes passed around the same time as the TVPA used "individual" to exclude entities.  And the Court concludes: "The text of the TVPA convinces us that Congress did not extend liability to organizations..." – that is, that the word "individual" as used by the enacting Congress did not include entities.

It's true that there's likely to be less divergence between modern meaning and enactment meaning in the case of relatively recent statutes.  But if there is divergence, I don't think the dominant strain of statutory textualism adopts Professor Bell's approach.  Suppose that "individual" in 1992 meant only human beings, but as a result of linguistic developments since then – reflected most importantly in a series of statutes enacted in the last year or so – it appears that "individual" is now more commonly used to include entities as well as human beings.  Would that have changed the result in Mohamad (and meant that the TVPA meant one thing in 1992 and another today)?  I think not.  Conventional statutory textualism seeks to find the textual meaning of the statute as enacted, not as it may have subsequently changed.  Otherwise we'd be in an odd position in which the current Congress (and non-legislative actors) could change the meaning of prior statutes by using words in different ways than they were used before.  And the Court would not talk about finding what Congress meant by the text it enacted.

Similarly, if Professor Bell were correct, the whole idea of using legislative history to interpret a statute would be dubious.  (Of course, some people think it’s dubious in any event; Justice Scalia notoriously refuses to join any discussion of legislative history, including in Mohamad.) But cautious uses of legislative history to confirm textual meaning (as in Mohamad) are widely accepted.  That’s because we understand part of the textual inquiry to be what the words of the statute meant to the enacting Congress.  If the inquiry were only what the words mean today, it would not matter what the legislative history suggested about Congress’ understanding.

In sum, I think (contra Professor Bell) that statutory textualism asks the same question as textualist constitutional originalism.  Of course, he may be right that it’s the wrong question.  But that’s a different debate.

UPDATE:  Tom Bell adds:

I read the case [Mohamad] to see if the Court specified which meaning it was after--original or present--and found the result inconclusive.  Regardless, for the same reasons that we should care about present meaning in the Constitutional context--protecting citizens' rights and respecting the rule of law--we should care about present meaning in the statutory context.  It is not realistic to suppose that average citizens can or should try to recreate the linguistic usages of such documents; they should be able to take the laws at face value.

Scalia thinks that on originalist grounds the Constitution's ban on  "cruel and unusual" punishment does not reach branding or public flogging.  I counter that the people who face the hot iron or lash should be able to trust the plain, present, public meaning Constitution.  On this point, originalists must choose sides.  It's an easy call for me.  Indeed, I'm surprised anyone could follow Scalia (though I admire him for not trying to weasel out of the results of his professed theory of interpretation).

To be clear, I think Professor Bell is raising an important point about what textualism should be looking for -- one that often gets lost in the originalism/non-originalism debate.