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Larry Alexander: Formalist Textualism and the Cernauskas Problem
Michael Ramsey

Larry Alexander (University of San Diego School of Law) has posted Formalist Textualism and the Cernauskas Problem (Journal of Contemporary Legal Issues, Vol. 23, No. 1, 2021) (6 pages) on SSRN.  Here is the abstract:

In this short piece I respond to a recent article in the Harvard Law Review advocating an approach to interpretation that amounts to semantic literalism. I point out the pitfalls of thereby ignoring what the lawmakers are asserting.

From the introduction (footnotes omitted):

In a recent article [Ed.: Which Textualism, 134 Harv. L. Rev. 265 (2020)], Tara Grove distinguishes between what she calls “formalist textualism” and “flexible textualism.” Formalist textualism is really another term for literalism, in which statutory and constitutional language is given its semantic meaning—presumably its meaning at the time of enactment—in its “semantic context.” Grove illustrates the latter by pointing out that the phrase “domestic violence” appears in a statute that also mentions “insurrection,” thus suggesting that domestic violence there refers to acts similar to insurrection rather than to spousal abuse.

Flexible textualism, on the other hand, looks beyond the semantic meaning of the text and its semantic context to the text’s purpose and the assumptions and understandings of the enactors and the public at the time of enactment. To put it in terms I prefer, flexible textualists want to know what the text—or more precisely, the legislature whose text it is—is asserting. And what the text is asserting may be different from its semantic meaning.

And here is the Cernauskas problem:

But let me introduce the little case of Cernauskas v. Fletcher.  Jacob Cernauskas brought suit against Bishop Albert Fletcher to enjoin him from closing an alley abutting Fletcher’s property. Fletcher relied on a law that Cernauskas claimed had been repealed by a recent statue, the repealing clause of which stated, “All laws and parts of laws . . . are hereby repealed.” The court stated, undoubtedly correctly, that the legislature had merely wanted to repeal those laws that conflicted with the statute it was enacting, and that the necessary part of the repealing clause, “in conflict herewith,” had been omitted inadvertently. In other words, the Arkansas court was employing Grove’s flexible textualism.

But consider what result a formalist textualism would produce in Cernauskas. When the statute in question was enacted, it would thereby become the only law in the state of Arkansas, all other laws having been repealed. That’s what the semantics of the repealing clause dictate; and there is nothing in their “semantic context” that suggests that “all laws . . . are hereby repealed” doesn’t mean what it says. So until the legislature passes new laws, Arkansas would not have laws against murder, rape, robbery, and so on. And anyone who committed those and numerous other crimes in the period after the repealing clause went into effect would have an ex post facto law claim against their prosecution.