The Empathetic Textualist

After the close of Day 3 of the Senate Show, I noted on the twitters that the winners for the day were Sen. Chris Coons for the Democrats and Sen. Ben Sasse for the Republicans, both of whom stood on opposite sides of an island of intelligence in a sea of partisan idiocy. In response, Cristian Farias pointed out that Sasse had made a curious point:

Sasse said something about empathy having absolutely no place in judging.

Among the things Judge Gorsuch made clear during his few moments of speaking in the midst of Senators being Senators was that his approach to statutory interpretation was texualist, meaning that he looked to the words of a law to interpret what the law means. This has an originalist component, in that the definition of the words should be based not on their new definition last week, but their definition at the time the law (or Constitution) was enacted.

At the same time, originalism has largely been the target of a misinformation campaign, by people who should know better but have an agenda which justifies lies to promote their cause. Originalism isn’t voodoo, the ability to look into the minds of long-dead Founding Fathers to discern what they really, really thought. Rather, it’s about adhering to the meaning of words at the time they were chosen rather than the coolest social justice version of the past hour or two.

But the reaction to Sasse’s “empathy having absolutely no place in judging” was similarly misguided. While interpreting the text of laws or the Constitution should involve nothing more than faithful adherence to the meaning of the words, the language often falls short of providing sufficient information to resolve a question. For example, the Eighth Amendment prohibits “cruel and unusual punishment,” but neglects to say what punishment they’re talking about. Drawing and quartering? Okay. The Iron Maiden. Sure. But execution?

Certainly the death penalty was a punishment in ordinary use at the time the Eighth Amendment was ratified, and so it couldn’t be contemplated by the drafters as cruel and unusual. Hell, it’s even mentioned in the Constitution. How much more do you want?

While this is a strong argument about what “cruel and unusual” doesn’t mean, it offers little insight into what it does mean. It also fails to offer any insight into the conflict between the two chosen words, as a punishment can be deemed extremely cruel, a value-laden word, and yet usual. Is it resolved by the use of the conjunctive, “and,” or can a punishment be so cruel as to overcome its being usual? After all, drawn and quartered is just another means of execution, and dead is dead, so how is a judge to distinguish the mechanisms of death that the Constitution permits from those it doesn’t?

And then there is the non-textual decisions, such as the Supreme Court’s Graham v. Connor opinion, in which it essentially answered the Trolley problem with “a cop’s life trumps yours,” or as I’ve named it, the Reasonably Scared Cop Rule. There is no statute to interpret. There is no “officer safety” exception to the Constitution. They pulled this one out of their butt.

In the absence of a text, of words, to rely on, what considerations should a judge apply in reaching a decision? This is where empathy plays a critical and appropriate role.

The “law,” by which I mean the decisions of the Supreme Court and lower courts, also relies on decisions that find no comfort in text. There is no answer to be found in ideology, whether textualist or the faux-but-hated originalism. The law arises from pragmatic necessity, that questions exist without any “balls and strikes” answers to be had, and yet they end up in the hands of a judge to decide. What then?

Lawprof Ken Levy offers an interesting approach.

The founders were not dummies; they knew that society would evolve in unforeseeable ways — morally, socially, politically, technologically — and that this inexorable evolution might well bring about unforeseeable applications of the same words. For example, instead of using the imprecise phrase “cruel and unusual” to lock in any particular punishment (like the death penalty), it stands to reason that they meant it to lock out whatever punishments future generations deemed unconscionable. So true originalism — genuinely following the founders’ intent — requires us moderns to interpret constitutional language in light of our own, not their, moral and linguistic norms.

In other words, the originalist approach includes the built-in ambiguity intended by the drafters. They meant it to be unclear for the purpose of allowing future generations of judges to reach conclusions consistent with the times and changes in society’s norms.

Contrary to Justice Scalia and his many disciples, there is a third way to interpret the Constitution, beyond textualism (and originalism) and pure subjectivism: principled pragmatism. Principled pragmatism says that judges should consider not only the constitutional language as the ratifiers interpreted it but also the constitutional language as we moderns interpret it, the structure of the Constitution as a whole, the overall purposes of the Constitution as stated in its preamble and — yes — the public policy consequences of each possible decision.

Other than going completely off the rails by throwing in “the constitutional language as we moderns interpret it,*” Levy provides a possible structure for interpretation that admits the ambiguity intended by the framers and allows for the imposition of empathy in decision-making.

When there’s text upon which a decision is to be made, then judges should adhere to it, including its real meaning at the time it was enacted. If Congress or the people don’t like it, they can change it. That’s how the system was meant to work. But where the text provides for ambiguity, or there is no text, then judges should be empathetic toward the people whose lives they affect.

As for the wiggle room of congressional purpose or intent, it’s the job of Congress to write comprehensive and comprehensible laws. Judge Gorsuch was right in noting that he, as a judge, can’t divine the secret intent of 535 people in enacting a law, and that’s not what should be expected of him or any judge. But in the exercise of their authority, there will be great opportunity for empathy to properly come into play. And it should, while still being consistent with faithful adherence to the text of the law.

*The “modern interpretation” not only gives rise to a facial conflict with textualism, but allows for a fallacy that would game constitutional rights. By seizing upon a clearly defined and understood word, morphing it into a word with an entirely different, fundamentally inconsistent meaning, one could effectively amend the Constitution without any of the heavy lifting the Founding Fathers crafted to prevent what subjectivists would have us do, reinvent our fundamental law with every blowing wind of cultural change. That’s not only untenable, as no one would be capable of relying upon the consistency of the law to know how to conduct their affairs and the performance of government, but just plain nuts as the meaning could shift from administration to administration, hour to hour.

12 thoughts on “The Empathetic Textualist

  1. Fyodor

    Sasse can use a less mushy word than empathy if it icks him out but unless the constitution really articulates the rules of every single state/citizen interaction I don’t see how you can determine if searches are unreasonable or testimony coerced without some ability to out yourself in someone’s shoes.

    1. SHG Post author

      Length of the post prevented me from delving into the myriad “reasonableness” rules as well. Absolutely true. There are a great many decisions that can’t be answered by text; empathy (or whatever less icky word one chooses) is critical to these determinations.

  2. John Barleycorn

    The Empathetic Textualist.

    You could start a “sexy” YouTube vlog with that title when the dust settles and your next pilgrimage reveals itself.

  3. Nigel Declan

    Your preference for textualist interpretation that relies on the meaning of words at the time they were written seems to run contrary to your well-established disdain for facile analogies from the analog world into the digital one (or similar instances of judicial rules being extended well beyond their original rationale). Does a textualist approach not lend itself to the sort of Scalia-esque “tiny constable” (US v. Jones) nonsense that arises from trying to figure out what Thomas Jefferson thought about electronic devices?

    To the best of my recollection, Orin Kerr’s various attempts to square the circle of applying pre-digital law to a digital age have yet to reach a solution you found satisfactory.

    1. SHG Post author

      The Constitution deals mostly in concepts. Most of my issues with Orin (and his wild pragmatism) have to deal with caselaw exceptions to the concepts, like the warrant clause. Not all that hard to square at all once you think about it. See what I did there?


    SHG, I once sentenced a textualist and put him on the sex offender list. All the best.


    1. maz

      A life sentence for textualizing strikes me as cruel and unusual.

      Unless, of course, he was using Instagram.

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