While reading Judge Posner’s Reflections on Judging, I found very interesting his critique on the concept of textualism as well as his thought-provoking critique of Scalia’s reasoning behind some of his holdings. I agree with Judge Posner that while text itself can neither be liberal or conservative, “textualism” is indeed a conservative construct, which works well as a methodology for crafting conservative minded holdings.
The first point of note I took from the reading was the increase in the use of dictionaries to find the meaning of words the court rules ambiguous. I found it quite telling that dictionary usage has risen from being referenced in 3.3% of all decisions during the final five years of the Burger Court to 33.3% of our decisions for the last three Robert’s Court terms. Posner points out that using dictionaries to explain legal terms is an objective analysis, yet the Justices each prefer using different dictionaries in many of the same cases. Furthermore, the use of a dictionary in these cases is usually up to the subjective thoughts of the Justice using them, and can be quite a tool to prove up their holding while seeming to be objective in their decisions. While people can argue with judges and policy, it is hard for the public to argue with a dictionary.
Second, I believe Posner’s analysis of the majority holding in District of Columbia v. Heller tends to highlight the problems within the textualist theory of judicial reasoning. The Second Amendment, as Posner states, is the only amendment within the Bill of Rights to have a preamble. That preamble states that “A well regulated Militia being necessary being necessary to the security of a free state,” which seems to narrow the scope of the second amendment. Furthermore, the textualist theory that Scalia promotes in his book touts the favorable treatment of preambles to the point where it is one of the textualist’s “canons of construction” for interpreting statutes and the Constitution. However, in District of Columbia v. Heller, the majority is dismissive of the preamble. Instead, the majority highlights the fact that the amendment used the word “people” in the second part of the amendment (“the right of the people to keep and bear arms”) to basically overrule the preamble that narrowed the scope of the amendment in the first place. Of course the holding backed up its textual claim with the history of the amendment, militias, etc. in support of the Court’s holding that its the right of private individuals to be able to own a handgun, a right that the government cannot infringe upon.
This case, as Posner describes, perfectly illustrates the inadequacies of the textualist approach. As a general concept, I believe textualism can be labeled as an objective approach, but the reality is that it is a convenient method for crafting conservative judicial opinions.
First, using the textualist approach is convenient for conservatives because it hinges on the concept that one should interpret the Constitutional text in a historical context; in short, interpret the language the way the framers would at the time of the Constitution’s drafting. This approach, while objective in theory, always will benefit conservative justices. The whole theory of conservatism is based on keeping the status quo, or relaxing the law to what it used to be. Naturally, an objective approach yielding to prior thoughts on the law would be beneficial to a justice’s subjective approach in attempting to change a law to what it was before. Even with historical analysis, political concepts come into play. For example, Posner explains that Scalia declined to agree with amicas curiae briefs written by history professors because he considered their philosophy too liberal. Both ideologies can use historical analysis to reinforce their respective points of view. The historical analysis just benefits conservatives more because liberals are mostly expanding the law to fit new definitions and exceptions whereas conservatives are straining to keep the law the way it is or narrow it.
In short, the textualist approach favors an application of the law that tends to constrict judicial activism. In my opinion, there will always be a subjective component to judicial decision making. While I am not against the textualist approach to judicial decision making, I strongly believe that it is just a legal method of employing the justice’s actual subjective beliefs about what the law actually should be. In the present, the Court has been the last party to rule on many political cases. As polar as politics is nowadays, the subjective beliefs of justices are more important now than ever to their respective ideologies.