We're all textualists now, Elena Kagan once said. That is we have all been dragged that way by two principles preached effectively by Antonin Scalia: textualism and original public meaning.
This brilliant student Note (Harvard LR persists in the anonymous student Note) plumbs Scalia for the influence of his father - a professor and advocate of the New Criticism - a rigid method which abjured reliance on context. not even the intent of the author mattered.
Scalian textualism is a rigid method of interpretation which seeks an unattainable certainty and conceals its subjectivity in misleading claims of objectivity such as "original public meaning".
- GWC
NOTE TEXTUALISM’S MISTAKE
In 1920, seventeen-year-old Salvatore Eugene Scalia arrived in the
United States from Italy with his family.1 He picked up English quickly
and decided to pursue a career in academia studying Romance languages. He got married, earned a master’s degree, and had a son, the
future Supreme Court Justice Antonin Scalia.2 Salvatore3 earned his
Ph.D. in 1950 and became a professor at Brooklyn College, where he
taught Italian, French, and Spanish.4 He was known in his field for his
scholarship on and translations of Italian poets,5 but he also had a lasting impact on legal theory that has gone largely unacknowledged.
Salvatore was a conduit between literary criticism and statutory interpretation, two fields that rarely intersect. Salvatore influenced his son’s
approach to reading a text, and his son in turn influenced a generation
of judges and scholars in developing and refining textualism.
Salvatore was affected by the New Critics, and theirs was the set of
critical beliefs that he seems to have imparted to his son.6 New Criticism
was the dominant American approach to literary criticism in the midtwentieth century, and its principles were well established over the decades in which it was theorized and taught in universities.7
First, its
adherents advocated for the method of close reading, by which they
meant focusing on “‘the work itself’ and ‘literature qua literature.’”8
Second, they emphasized formalism over social context and other external factors in pursuit of objective, scientific analysis.9
Finally, the kind of close reading that the New Critics espoused largely did away with
authorial intention as a relevant area of inquiry.10
As this Note will
demonstrate, these tenets of New Criticism are reflected in many of
Justice Scalia’s core textualist convictions — notably his close attention
to statutory text, his certainty in reaching definitive outcomes in interpretive questions, and his rejection of congressional intent as a relevant
factor in statutory interpretation.
This connection between New Criticism and textualism would be
nothing more than an interesting footnote in legal history were it not for
the very different trajectories of the two movements. New Criticism
began falling out of fashion in the late 1960s, as poststructuralism and
postmodernism swept into the academy.11
In 1967, Roland Barthes published his landmark essay The Death of the Author, which embraced the
multiplicity of viewpoints resulting from dynamic interactions with
other texts and the readers themselves.12 On this view, the text is not a
closed entity that can be reduced to the words on the page; rather, “[t]he
Text is plural” and draws meaning from disparate other sources.13
Barthes and other poststructuralists14 also urged considerations of social
and political context when considering a text, eschewing the narrower
kinds of close reading that shut out external forces.
While these theorists
were not always directly responsive to New Criticism, their ideas can be
read in concert: where the New Critics prized certainty and objectivity,
the poststructuralists celebrated subjectivity and variability. These are
profoundly different ways of looking at the same fundamental insight:
that authorial intent is not a valid way to interpret a text.
Meanwhile, textualism — particularly Justice Scalia’s version of textualism — remains the dominant method of statutory interpretation
among the federal judiciary.15 Justice Kagan remarked in 2015 that “we’re all textualists now,”16 and the three most recent appointees to
the Supreme Court are “eager to follow and expand [Scalia’s] program.”17 But textualism’s early connection to New Criticism has been
underexplored, and as a result the legal theory has not grappled with
the poststructuralist response.
This Note examines both the similarities between textualism and
New Criticism and one of the consequences of that similarity — namely,
the relevance of poststructuralism.
Part I discusses New Critical theory,
both on its own terms and as it influenced and appeared in Salvatore’s
publications on Italian poetry. It then addresses Justice Scalia’s writings
on statutory interpretation to show the ideas shared by the two movements.
Part II considers the poststructuralist response to New Criticism,
noting the interrelated critiques revolving around authorial intent and
the practice of close reading as a lens through which to analyze textualism. Poststructuralism cannot offer a model for statutory interpretation
because it embraces indeterminacy and subjectivity, in stark contrast to
the consistency needed in reading statutes. However, its theoretical insights can be used to parse textualist opinions, which section II.B
demonstrates by examining two recent opinions from the Roberts Court,
Bostock v. Clayton County 18 and Niz-Chavez v. Garland.
19 In so doing,
this Note shows how textualism fails to grapple with the consequences
of its interpretive approach and leads to the very subjectivity that it
strives to avoid.
*****
CONCLUSION
Interpretation lies at the heart of legal debate. Statutes creating
rights and duties are penned by legislators, then enforced by judges attempting to resolve the complexities and inherent ambiguities found in
written language. The dominant interpretive methodology today, an
outgrowth of Justice Scalia’s textualism, seeks to resolve ambiguity in
the search for ordinary meaning, a supposedly neutral way to read a
statute. It is perhaps unsurprising, given this aim, that textualism has
so much in common with the New Critics and Salvatore Scalia, who
also strove for empiricism by focusing on nothing more than the words
on the page.
But as poststructuralism reveals, this approach fails to
account for intertextuality and embraces an ahistoricized perspective in
its close reading. More broadly, the poststructuralist lens applied to textualism shows the relevance of literary theory in the field of statutory
interpretation. While literary criticism does not provide a guidepost for
judges, it can illuminate salient aspects of language — including the
interpretive pitfalls with which both fields have grappled.
No comments:
Post a Comment