According to the American textualists, the interpretation of the Constitution should be based on the meaning of the text and not on what the text should mean. Textualists disagree with lawyers who regard the constitution as a living document, a text that sometimes needs to be adapted to new circumstances and ‘the felt necessities of the time’ (Holmes). According to textualists, this type of interpretation results in dangerous judicial activism.
We think that the textualists like to exaggerate in this debate with the so-called activists. The Supreme Textualist Antonin Scalia, for example, is fond of the hyperbole. He accuses his opponents of applying the ought-is fallacy. What kind of fallacy is that? Let's look at Scalia's analysis.
In his lecture ‘What is our Constitution’, Scalia puts his textualistic cards directly on the table: ‘I am a textualist and an originalist. I do not believe that its meaning evolves over generations so that to each age it contains everything that's good and true and beautiful, even though it's not really written in there.’ 1 According to Scalia, this was the prevailing doctrine for a long time. The Constitution was a solid foundation with unchanging meanings. When this posed problems in the application of the law - for example the need for updating - the judge simply said: the constitution always had that meaning! "That was a lie," Scalia continues, "Hypocrisy is the beginning of virtue. Today you do not have to lie about it. You just simply say, “Well, it ought to mean that. And therefore, it means that."
This is the ought-is fallacy. Simply put, this fallacy, also called the moral fallacy, means that you claim that something is because it should be. In the interpretation of laws, this means that you derive a ‘true’ interpretation from a desirable interpretation.
In addition to this direct variant, the ought-is fallacy has two other more indirect forms. The first form is the ad consequentiam. In this fallacy, you claim that something is not (or cannot be) true because the acceptance of that truth would have undesirable consequences. For example, you argue, "It cannot be true that we do not have a free will, because that makes life meaningless to me." The second variant is the ad absurdum reasoning, which becomes fallacious when the world of facts is confused with the world of values. You argue: X is not true, because if X were true, we have to accept Y and Y is inconsistent with something desirable.
The ought-is fallacy is the counterpart to the well-known is-ought fallacy, also known as the naturalistic fallacy. This fallacy, described by Hume and Moore, assumes that an ‘ought’ can be derived from an ‘is’. According to Hume and Moore, there is a logical gap between ‘is’ and ‘ought’ and ignoring that gap leads to fallacies (others, like Searle, put this strict separation into perspective).
Let’s go back to the position of the textualist Scalia. According to his textualism, the interpretation must be based on the meaning of a text. Well, who would deny this? But what does that text mean? And how do you find out that meaning? In their book Reading Law: The Interpretation of Legal Texts, the textualists Scalia and Garner distinguish no less than 57 interpretation methods in order to arrive at an ‘objective’ interpretation. Application of these methods sometimes leads to remarkable results. In Texas v. Johnson, 491 U.S. Pat. 397 (1989), the central question was whether the burning of the American flag is protected by the constitutional right to free speech. This right is formulated in the First Amendment as follows: ‘Congress shall make no law abridging the freedom of speech or of the press.’ Of course, the burning of the flag is part of this, argues Scalia confidently: if the constitutional legislator uses 'speech and press', according to Scalia this is the figure of speech synecdoche: “you name a part to represent the whole, as in 'I see a sail’: Speech and press represent expression. That's the way I read the First Amendment."
And so a textualist appears to arrive at very desirable interpretations of the law. Of course, Scalia has a good explanation for this: hypocrisy is the beginning of virtue!
This column was previously published in Dutch in Ars Aequi, May 30, 2020