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08/06/2022

Erik Encarnacion: Text is Not Law
Michael Ramsey

Erik Encarnacion (University of Texas School of Law) has posted Text is Not Law (Iowa Law Review, Vol. 107, No. 5, 2022) (53 pages) on SSRN. Here is the abstract:

The Supreme Court’s landmark decision in Bostock v. Clayton County provides further fodder for debates about textualism, given the dueling opinions of Justices Gorsuch, Alito, and Kavanaugh, each of which purports to apply textualist reasoning correctly. But in a little-remarked-upon passage, Justice Gorsuch’s opinion casually conflates text and law, asserting, “[o]nly the words on the page constitute the law adopted by Congress and approved by the President.” In equating statutory text with law, Justice Gorsuch isn’t alone, following in the footsteps of other prominent textualists, including the late Justice Antonin Scalia and Judge Frank Easterbrook.

But text is not law—and cannot be. Conflating statutory text and law makes a category mistake. And not a harmless one. Nor is the conflation easily dismissed as an example of incautious rhetoric. The conflation fosters confusion about textualism and further muddles public understanding of appellate adjudication by propping up the myth that appellate judges should—and can—avoid making law. Conflating text and law also facilitates a type of literalist interpretation--indeed, opportunistic literalism--that defenders of textualism purport to reject.

Despite these problems, the casual conflation of text and law is likely here to stay, at least in part because it provides rhetorical advantages to textualist judges by allowing them to sidestep thorny controversies about linguistic meaning and the nature of law. This advantage suggests that textualist judges will continue to claim, falsely, that text is law.

Via Larry Solum at Legal Theory Blog, who has extensive critical comments, concluding: 

Originalism is the view that constitutional construction ought to be constrained by the communicative content of the constitutional text.  Statutory textualism is the view that statutory construction ought to be constrained by the communicative content of statutory texts.  Formulated in this way, neither originalism nor textualism rests on the claim that "text is law," and neither theory commits a category mistake.  This has all been clear since the early 2010s--although some originalists and textualists may be unaware of these issues or fail to appreciate their conceptual importance.

Read Encarnacion but take his article with a grain of salt when it comes to its claims about textualism and originalism.

Agreed. I don't think anyone actually thinks that text standing alone (meaning just the marks on the page) is or ought to be the law.