Be advised: this thread is not for serious in-depth discussion of weighty topics (we have a link for that), this thread is not for anything Culture War related. This thread is for Fun. You got jokes? Share 'em. You got silly questions? Ask 'em.
- 207
- 2
Jump in the discussion.
No email address required.
Notes -
No one is arguing that we have to throw out common sense. Nor is anyone arguing that MQD must necessarily be thrown out. The article is merely arguing that the specific argument made in favor of MQD by Barrett in that particular section is inconsistent with textualism. As the conclusion of the paper says, "There is insufficient empirical support and theoretical clarity to cast the MQD as a valid linguistic canon. Arguably, the linguistic defense is the only viable theory for textualists to consistently employ the MQD. Unless they offer a successful alternative, the results here support the argument that textualists should abandon the MQD."
This is exactly what I'm talking about, this definition of textualism which excludes common sense when it suits the author. MQD is just common sense and requires no textualistic support. And again, the supposed "linguistic defense" is focusing too much on the linguistics when it should really be focused on "common understanding" aka "common sense."
This is why I mentioned "this definition of textualism which excludes common sense when it suits the author." When I say MQD is common sense, I'm not saying common sense says MQD is true. I'm saying MQD is literally common sense, i.e. it is a name we have given to a certain portion of common sense. Certain things like common sense, logic, etc. underly textualism. To say MQD and textualism are inconsistent is simply to say you don't like textualism because it's illogical. Textualism never claimed to be the one true fount of truth from which all legal reasoning, including reasoning about legal reasoning, must flow.
Is there a legal doctrine for things like modus ponens? All doctrines do is narrow down and give names and guidelines to basic reasoning. It is impossible to have rules for all situations, and it is impossible to precisely define even a single situation, so literally all rules' interpretations are subjective to some extent. "Don't break the law" is basically the foundational principle of the justice system, and the rest of the doctrines are how to determine whether the law is broken. Something like "Don't interpret the word 'small' to actually mean 'big'" is of course so obvious that it doesn't need its own principle, not to mention too specific for a principle, but the broader principle of "words have meanings" is extremely subjective, and so smaller doctrines have been established to break that sort of thing up.
MQD is in the "words have meanings" category where it is obviously valid, but is so large that it cannot be as objective as more narrow doctrines are. In the absence of a more narrow doctrine, though, MQD seems perfectly valid to me.
First of all, you seem to be conflating logic and common sense. They are not the same thing. Although logic informs common sense, ultimately common sense includes a form of judgment, as is exemplified by the babysitter example, and the fact that people wildly disagree on whether the trip was an unreasonable application of the rule. And, what about a one-day trip to Disneyland? Or a trip to the Coney Island boardwalk? What it they went to the boardwalk on a rented helicopter. Helicopter trips are fun! So, logically, that is perfectly fine. But common sense might imply that it wasn't,
And it is completely incorrect to say that "To say MQD and textualism are inconsistent is simply to say you don't like textualism because it's illogical." Textualism attempts to determine what words in a statute mean by trying to determine how the words were understood when the statute was written. Once that is determined, that meaning controls the outcome, as a matter of logic, even if it is clear that no one intended or even contemplated that outcome at the time. The obvious example is of course Bostock, holding that VII of the Civil Rights Act of 1964 forbids discrimination based on sexual orientation and gender identity.
In contrast, to textualism, to which legislative intent is irrelevant, MQD rests on an assessment of legislative intent; as Barrett notes, "the major questions doctrine rests on “both separation of powers principles and a practical understanding of legislative intent”). Which is why stating that MQD is inconsistent with textualism does not necessarily undermine the legitimacy of either.
As for "words have meanings," that has very little to do with MQD. In the textualist majority opinion in Biden v. Nebraska, Justice Roberts examines the meaning of "modify" and determines that the loan cancellation does not meet that definition. ( "that term carries “a connotation of increment or limitation,” and must be read to mean “to change moderately or in minor fashion.” Ibid. That is how the word is ordinarily used. See, e.g., Webster’s Third New International Dictionary 1952 (2002) (defining “modify” as “to make more temperate and less extreme,” “to limit or restrict the meaning of,” or “to make minor changes in the form or structure of [or] alter without transforming”). The legal definition is no different. Black’s Law Dictionary 1203 (11th ed. 2019) (giving the first definition of “modify” as “[t]o make somewhat different; to make small changes to,” and the second as “[t]o make more moderate or less sweeping” ... The Secretary’s new “modifications” of these provisions were not “moderate” or “minor.”).
That is not the type of inquiry involved in MQD. As the CRS notes, MQD applies when "(1) the underlying claim of authority concerns an issue of “vast ‘economic and political significance,’” and (2) Congress has not clearly empowered the agency.” MQD is not about the meaning of words. It is about the intended scope of a statute. Thus, even if the Court had decided that "modify" can legitimately be interpreted to mean "cancel," they could have nevertheless annulled the loan cancellation under MQD on the grounds that Congress had not clearly intended to delegate action with "vast economic and political significance."
Finally, if it is so crazy to think that textualism and MQD are inconsistent with each other, why does Justice Barrett not think it is crazy? See the second paragraph of her concurrence in Biden v Nebraska: "I take seriously the charge that the doctrine is inconsistent with textualism."
Yes, and how does textualism determine what words in a statute mean? It uses things like logic, common sense, and MQD. The reason I compare it to declaring textualism illogical is because logic is one thing which underlies textualism. Textualism as a philosophy relies on determining the meaning of words, yes, but logic and MQD make up the foundation which textualism relies upon even before its theories/doctrines come into play at all.
Is this true? My understanding was that textualism does consider historical context etc. when determining the meaning of words. If not, I will have to rethink my support of textualism.
re: "words have meanings", that was just an example of a broad guideline. It's impossible to objectively determine the exact meaning of every word, but judges must do so as best they can. I drew a connection between that and MQD, which seems similarly broad and similarly necessary.
The excerpt reads:
I think this is pretty consistent with what I'm saying.
Yes. See here and here.
In that case pure textualism definitely seems lacking, though I'd argue that (as with most things) a push to "always interpret laws only as their text" is really only a push to do so more often. In any case MQD seems to synthesize textualism with common sense in a way that solves that problem.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link