Revival of Textualism in the Interpretation of Restrictive Instruments

In the context of the recent USSC judgment overturning Roe v Wade, this piece looks at the use of textualism as employed by the bench therein and contrasts it with the Indian use of Textualism as a tool for Constitutional interpretation. Having often been at the receiving end of most criticism, Textualism, this piece argues can be revived as a valid and legitimate tool of interpretation.

Archit Sinha

Introduction: Textualism – The Conundrum of Interpretation

‘Interpretation of statutes’ as a school of law has often occupied headlines (Williams, G. 2006, 127) concerning the interpretation of the Constitution, specifically, the rights guaranteed by a Bill of Rights (such as Part III or the American Bill of Rights). One of its facets, which has habitually been the focal point of controversy is ‘Textualism’ (Williams 128). Also known as the Literal Rule of interpretation, it binds judges to the plain meaning (Williams, 127) of the text provided such meaning is unambiguous. Naturally, the question of the sustainability of this rule has come up. Many have deemed this rule to be ‘devoid of logic,’ ‘baseless,’ etc. (Williams, 128), while others have defended it by adding nuances to its use (A prime example would be Scalia, J.’s Textualism). I focus on the tenability of Textualism in today’s context where, among other things, its politically neutral attribute (Williams, 129) is put forward in its defence, which (apparently) saves the judges from such criticism accordingly.

Textualism: Resurgence and Relevance

The questions of interpretation via textualism, and its sustainability become especially relevant in the context of the recent US Supreme Court (SCOTUS) judgment in Jackson where Kavanaugh, J. (concurring) lays down the doctrine of ‘Constitutional Neutrality’ following a textual analysis of the US Constitution (USC). I contrast this judgment with the Supreme Court of India (SCI) decision in Ramji Lal Modi to bring out the nuance that Modi’s use of textualism had vis-à-vis Jackson. It is imperative such be done if textualism is to be revived as a school of Constitutional interpretation. The SCI engaged in a textual reading of Article 19(2) of the Constitution of India (COI). Though it has been argued that it had a detrimental impact on Article 19(1)(a) of the COI, I argue otherwise regarding the implications of the use of textualism on instruments such as the Part III of COI.

I aim to establish the conditions appropriate for the use of Textualism as a tool for interpretation. To this end, I introduce two kinds of instruments – Restrictive and non-Restrictive and explore the use of Textualism therein. Simply put, Restrictive Instruments are those laws that impose limits on the exercise of freedoms, and non-Restrictive Instruments are the laws that acknowledge freedoms – Fundamental rights (right emanating from a bill of rights), enabling laws/instruments, etc. Through a comparative analysis of the 2 cases at hand, I argue for the revival of Textualism only in the interpretation of Restrictive Instruments. To this end, I will start in Part I with an analysis of Jackson’s Textualism vis-à-vis Modi’s Textualism and bring out the contrast to identify the conditions apt for using textualism. In Part II, I provide two arguments to justify differential treatment vis-à-vis the relevant instruments. In Part III, I consider the counters, responses, and limitations of my arguments and conclude thereon.

I. Contrasting the Use of Textualism: Jackson v. Modi

Restrictive Instruments vis-à-vis Modi’s Textualism

The SCI in responding to an Article 19 challenge to s/295a of the Indian Penal Code (IPC), took a literal position on the wording of the section. It observed that the section was worded such that it only penalised (attempts or) acts of insults which [were] perpetrated with the deliberate and malicious intention of outraging religious feelings [para 9]. The use of ‘only’ attributes a narrow scope to the provision and justifiably so. Consider the nature of the law in question – IPC, which is basically a set of (arguably) justified restrictions on the rights of people. It is a Restrictive Instrument by nature. Hence the use of textualism inherently narrowed it further. In conclusion, the use of Textualism restricted the restriction.

In its certainty and predictability regarding the meaning of the text, textualism stands out from other models of interpretation (Siegel, J. 131) and offers a (comparatively – as opposed to other modes of interpretation like Purposive Interpretation, The Golden Rule or the Mischief Rule) (Williams 127–136) reasonable mode of inquiry for Restrictive Instruments. As a mode of interpretation, it is inherently restrictive in scope, so it may seem that in no circumstance will it widen the meaning of a piece of text but in its application, contentions may arise. However, this rule takes care of that as well. Note the condition of unambiguity in the text before the application of this rule.

Further, in Modi’s interpretation of Article 19(2) of the COI. The Court read in the interests of, literally and distinguished it from maintenance of public order and concluded the ambit of article 19(2) to be comparatively wider [para 7]. The court did no wrong in terms of this interpretation of Article 19(2) as it is an inherently Restrictive Instrument, so it must be read textually.

Contentions as to the ‘Likelihood Test’ (the Likelihood of an act leading to an outcome that the law prohibits) or the proposition given in Lohiya are valid and I side with them but these only arise after the instrument is identified either as Restrictive or non-Restrictive. So, these tests are not about textualism but article 19. Consequently, the interpretation of in the interests of,is correct and moving forward, the test may be to check if the impugned law is actually indeed in the interests of public order by using the Likelihood test or proximity test as under Lohiya.

This positive appraisal of Textualism, however, must not be accepted uniformly. In terms of Restrictive Instruments, the ability of Textualism to narrow down the meanings may be something to celebrate however, in terms of FRs (non-Restrictive Instruments) a contrasting implication can arise out of its use. Consider article 21 of the COI. Gopalan committed an egregious error in employing textualism as it narrowed the scope of the right to life to such a degree that it became meaningless until Maneka remedied it. Even Roe opted against a textual reading of the impugned amendments though it did not go into the nature of the instruments. I explore the argument in Roe in the subsequent section.

Before critiquing the outcome of Roe, it is imperative to analyze the Court’s reasoning to trace the implications of the use of textualism. The court reasons from two arguments (among others) that are relevant for my analysis.

Argument From Roe v. Language of The Instrument

The USSC in Roe had located the right to abortion in the ninth and fourteenth amendments to the US Constitution. The ninth amendment affirms the people to be the holders of unenumerated rights (Rights that are not explicitly in the text of the Constitution, like privacy, etc.) and the fourteenth amendment largely corresponds to Article 14 of COI. Roe connected these two amendments to hold (a) liberty (abortion) to be an unenumerated right and (b) that the fourteenth amendment protects enumerated as well as unenumerated rights. Therein, the court recognized the right to abortion (RTA) also under the fifth amendment in addition to the fourteenth amendment. While interpreting the fifth amendment (due process clause), the court read its text literally and held that fetuses did not come under ‘person’ as used under it. Further, the Court read the right to privacy (RTP) under ‘personal liberty’ as given under the fourteenth amendment. Consequently, RTA was recognized as a facet of RTP.

Now Jackson did not attack this logic but rather the conclusion i.e., the enumeration, rather the lack thereof RTA. It acknowledged the absence of RTA in the text of the USC and used the ‘Historical Tradition test’ (simply that the RTA was not evident in the history of the US as many states had banned abortion previously) to nullify it. This test is also based in the Due Process clause of the USC. It states – since it (clause) gives two classes of rights – (a) those guaranteed by the first 8 amendments and (b) those deemed fundamental but are not written in the USC, those under (b) need to be deeply rooted in the nation’s history… to be protected. RTA did not meet this test and hence was nullified.

The Doctrine of Constitutional Neutrality

Kavanaugh, J. (concurring) in Jackson restricted the issue to what the Constitution [said] about abortion and subsequently presented his take on it under the banner of Constitutional Neutrality. He deemed the USC to be neutral on the issue of abortion and consequently left the issue for the elected representatives to decide. Further, drawing on the apparent constitutional neutrality on the issue, he deemed the SCOTUS to be bound by it as well. Simply put, since the text of the USC took no stand on the abortion issue, the SCOTUS could not take one either and resultantly, Roe had to be overruled. With this alleged neutrality regarding abortion, Kavanaugh, J. followed suit from the rest of the 6 concurring judges in undertaking a literal (textual) analysis.

Precisely such use of textualism deserves criticism for lacking any logic/application of mind. The context here is clearly of non-Restrictive instruments i.e., the ninth and fourteenth amendments. Neither puts any form of restriction on the freedoms of people, so, the use of textualism was bound to restrict and further narrow down the scope of rights emanating from them, hence, RTA was removed from RTP. This is in contrast to Modi’s Textualism where the primary distinction is the nature of the instruments – Restrictive in Modi and non-Restrictive in Jackson.

II. Restrictive v. Non-Restrictive: Why Difference in Treatment?

Simply establishing a difference in nature is not enough to justify the averseness to the use of textualism in the case of non-Restrictive instruments. While they may be interpreted using the existing modes of interpretation like The Golden Rule Purposive Interpretation, or the Mischief Rule (Williams, 127–136). While there exist reasons for/against employing such tools, their appropriateness/desirability is beyond the scope of my inquiry. Here, I aim to bring out the reasons for the differential treatment of the two kinds of instruments.

Argument From Principle

Instruments such as FRs merely recognise such rights and do not grant them. That is to say, instruments such as the Bill of Rights or Part III only codify existing principles through words. These rights are primarily based on principles such as equality, non-discrimination, liberty (of expression), etc., and are also reflected, for instance, in the basic structure of the COI. These are simply abstract principles that are necessarily general so they vary in application, based on context. For instance, the notion of Equality. Depending on the context, it may refer to Substantive Equality (Fredman, S. 2016 727), as has been held under articles 15 and 16 of the COI, (affirmative action laws) or, under article 14, it implies non-arbitrariness, intelligible differentia, and reasonable classification. Even ‘liberty’ as under article 21 takes various forms – Privacy, substantive due process, access to the internet, etc. This, consequently, maximizes the areas where freedoms can be exercised for a holistic realization of these rights.

So, taking a textual stance here would only restrict the scope of these principles in application, as precisely evidenced by Jackson. Consequently, following textualism would only narrow FRs. Contrast this with Restrictive Instruments – provisions such as the IPC, Article 19(2), Article 17 of the COI, etc. exist to regulate freedoms. They have been formulated only in response to the pre-existing principles that are the basis of FRs. They exist to regulate the exercise of freedoms in certain areas, in the interests of public order, etc.

Moreover, in a democratic setup, the freedom of people is of utmost importance, hence, the narrower the restriction, the more desirable it is. Lastly, going by the self-imposed condition in the literal rule of interpretation – unambiguity of the text, this rule can hardly be valid for abstract, undefined and context-based principles.

Argument From Scope

For Restrictive Instruments, textualism still is a valid form of inquiry. The scope of these instruments is to contain the exercise of certain freedoms in particular contexts. Consider regulations, statutes, or restrictions – inherently, they limit and are restricted in scope vis-à-vis FRs. So, the use of principle textualism, i.e., the courts cannot expand the law to a situation that is not within its text even though it may be under its purpose, but it cannot constrict the law either, by excluding a case that the text includes even though logically it makes no sense to include it, becomes imperative (Williams, 127).  This attribute also creates a potential for controversy (Plass, S. 1995, 101) regarding the use of textualism as it can lead to irrational (Nelson, C., 398–399) and absurd conclusions (Marmor, A. 2007, 198).

III. Limitations, Response & Concluding Remarks

Continuing from the previous section, the ‘controversy’ argument is a possible limitation; however, I respond to it via the Balance of Convenience argument. Simply put, one may consider which side of the argument is more convenient to be remedied if a particular course of action is followed. For example, if cases with absurd conclusions outnumber those without, then the application of textualism to Restrictive Instruments will be undesirable. Such is a limitation of my argument.

Secondly, in giving my thesis, primarily only 2 cases have been relied on in detail, whereas the application which is put forward is intended in a broader sense – across varying instruments. So, there is a substantial lack of supporting evidence for the thesis to hold.

My response to this is simply the nature of arguments made in Part II. Granted I have primarily used 2 cases. But I have only used these cases to introduce the problems with a blanket application of textualism sans any regard for the nature of instruments. These problems have been introduced in the form of consequences (taking away the RTA, etc.) for the sake of clarity, because consequences can be observed, unlike principles (unenumerated rights, liberty, liberty in bodily affairs, etc.). The subsequent arguments in Part II have been made on principle (Part II A & B) and not facts, hence they can be considered beyond the 2 cases.

In conclusion, I see scope for a revival of the use of textualism but only in specific causes of action – only those involving Restrictive Instruments. Textualism is a valid form of interpretation on which scholars (Siegel, J. 2009, 171–175), jurists, and academicians alike have substantially relied upon, modified and reshaped it (Plass, 106). Among many jurists, the contributions of Scalia, J (Plass, 101) and his theory of textualism find relevance and support even today (Plass, 150-151). In this context, a blanket nullification of textualism is simply unrealistic and undesirable.

The author is a student at the National Law School of India University, Bengaluru.

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