Tuesday, June 21, 2022

Interpreting Law and Literature

Guest Blogger

This post was prepared for a roundtable on Law, Literature, and Other Performing Arts, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Robert Pushaw

Sandy Levinson maintains that literary theory and the performing arts can inform legal interpretation. Are such analogies useful, since legal analysis has such major political, economic, and social effects?[1] Perhaps “yes,” as hermeneutics (the rules, methods, and theories of interpreting texts) has yielded various approaches that have parallels in law.[2] Alas, almost all attorneys have ignored hermeneutics and characterized legal interpretation as sui generis. Debates over hermeneutics and law, then, will remain the province of academics.

Leading that field is Professor Levinson, who published a seminal article forty years ago.[3] It can be summarized as follows.[4] Modern linguistic and literary theorists deny that an interpreter can ascertain a text’s objective meaning. Rather, the indeterminacy of language results in a process through which readers subjectively engage with the text to construct its meaning. This critique has radical implications for interpreting law texts. Legal professionals cling to the illusion that they can impartially discern a law’s true meaning. Unlike literature, however, law would collapse if multiple interpretations were deemed equally valid, so ultimately one view will be accepted because it is set forth by an acknowledged authority who can coerce compliance.

Levinson’s thesis applies with special force to the Constitution, which attempts to freeze language to control future events.[5] Yet few scholars believe the historical meaning of the Constitution can be recovered with certainty.[6] Moreover, even if such an “originalist” approach were possible, the Court does not adhere to it, but instead relies on precedent and political judgments.[7] Nonetheless, the Court’s constitutional interpretations are generally accepted because it is regarded as authoritative.[8]

I agree with Levinson that a plain-meaning “textualist” approach is usually untenable because words are often ambiguous or used figuratively and can change meaning over time.[9] However, rejecting wooden textualism does not require embracing the opposite linguistic and literary theory: that a reader's subjective preconceptions, experiences, interests, norms, and interactions with others make a text's meaning, which then generates new meanings in an endless “hermeneutic circle.”[10] Transplanting this approach to law forces one to make Levinson’s choice between Scylla (treating every interpretation as possibly valid) and Charybdis (blindly accepting the interpretation of the highest authority).[11]

But there is a third hermeneutic alternative that should appeal to lawyers. “Contextualism” posits that meaning depends on shared linguistic conventions in the author’s historical and cultural environment, which must be recovered to make older writings intelligible today.[12] Contextualism resembles originalism, but attorneys (including Justices) lack the expertise and time to do the necessary linguistic and historical research – and hence deploy “law office history” to justify their favored outcomes.[13] This failure of originalism in practice, however, does not negate the possibility of genuinely neutral contextualism.

My favorite illustration concerns Congress’s power “to regulate commerce among the states.” The Court, bowing to pressure to uphold the New Deal, cobbled together the following standard of review: Could Congress have determined that the activity regulated, in the aggregate, “substantially affected” interstate commerce?[14] This toothless test has no basis in the Interstate Commerce Clause (ICC) as historically understood.

My “contextualist” study of all relevant eighteenth-century linguistic and legal sources revealed the ICC’s original meaning to ordinary readers, its drafters’ intent, and its ratifiers’ understanding.[15] First, Congress could regulate “commerce” – the voluntary sale of goods and services and accompanying activities intended for the market – but not purely cultural, moral, and social matters.[16] Second, such “commerce” had to affect at least two states.[17] Applying these two factors would sustain most ICC statutes, but supply a principled basis for invalidating those addressing popular but noncommercial subjects such as violent crime.[18] My approach is apolitical. To take a timely example, Congress can regulate the provision of abortion as

“commerce” (selling a service), whether its goal is liberal (protecting access to abortion) or conservative (banning partial-birth abortion). By contrast, the two main competing ICC interpretations do not account for all evidence and have political overtones.

First, Richard Epstein and Randy Barnett contend that Congress can only regulate the sale and transportation of goods across state lines, which furthers their libertarian vision.[19] Concededly, the core meaning of “commerce” has always been trade, but in 1787 its regulation also included market-oriented activities such as manufacturing, banking, and insurance.[20] The Constitution’s ratifiers shared that view, and early ICC legislation (approved by Presidents and the Court) extended far beyond trade.[21]

Second, Akhil Amar and Jack Balkin assert that “commerce” included all “interactions” – not just market-directed, but also social (e.g., personal friendships and conversations, religious activity, and communication and transportation networks) and political (e.g., immigration).[22] In support, they offer a few obscure, nonlegal sources using “commerce” in its unusual sense of “intercourse.”[23] They further claim that Congress could reach any interactions that spilled over state lines.[24] Yet Professors Amar and Balkin do not cite anyone during the Constitution’s framing, ratification, or early implementation era who expressed their version of the ICC, which would have given Congress untrammeled power.[25] Rather, they provide an originalist veneer to justify modern liberal legislation.[26]

Such verbal ingenuity explains why Professor Levinson shifted gears and concluded that legal interpreters do not impartially determine a text’s meaning, but rather are like artists performing plays and music, who must decide how to present a text created by someone else to an audience in light of changing social practices.[27] Most notably, the Court to retain legitimacy must persuade commoners that its technical legal translation of the Constitution faithfully reflects broader political and social movements.[28]

Average Americans, however, do not read the Court’s opinions for such fidelity, yet tend to accept even unpopular decisions because they defer to its superior legal expertise and assume that it is interpreting, not amending, the Constitution. Levinson candidly admits that amendment is occurring. Therefore, he rightly criticizes scholars who defend the Court’s creative progressive decisionmaking by claiming that the Justices are objectively discerning the public values of morality embodied in the Constitution's text.[29] Indeed, liberals’ moral “constitutional” values – such as countenancing abortion and same-sex marriage – clash with those of conservatives (especially traditional Christians).

Thus, Levinson stresses that when elected conservatives appoint like-minded Justices, it is incoherent to say that such jurists are not reflecting public values.[30] Intellectual consistency dictates the conclusion that it is legitimate for the current six conservative Justices to “interpret” the Constitution based on their vision of public morality.

Robert J. Pushaw is the James Wilson Endowed Professor of Law at the Pepperdine University Caruso School of Law. You can contact him at

[1] He recognizes this problem. See SANFORD LEVINSON, CONSTITUTIONAL FAITH 3-8 (1988); Sanford Levinson & J.M. Balkin, Law, Music, and Other Performing Arts, 139 U. Pa. L. Rev. 1597, 1531 (1991). I acknowledge that certain non-legal works (like the Bible) have had profound practical consequences.

[2] Robert J. Pushaw, Jr., Comparing Literary and Biblical Hermeneutics to Constitutional and Statutory Interpretation, 47 Pepp. L. Rev. 1 (2020).

[3] Sanford Levinson, Law as Literature, 60 TEX. L. REV. 373 (1982).

[4] This paragraph oversimplifies arguments presented id. at 373-84, 389, 396.

[5] Id. at 376-77, 384.

[6] Id. at 378-79 (arguing that the Constitution's original meaning (1) cannot be determined because a group has no single intent, and the Framers and Ratifiers who expressed their understanding often disagreed; and (2) has no special relevance in resolving modern problems).

[7] See id. at 378, 385.

[8] See id. at 389-90, 395-96; see also id. at 395-96 (analogizing the Court to the Pope, whose Biblical interpretations Catholics treat as definitive); LEVINSON, supra note 1, at 9-53 (emphasizing that the Constitution and a sacred text are both written, permanent, and viewed as binding authority).

[9] Pushaw, supra note 2, at 5-6, 13-18, 25-26.

[10] Id. at 10-11 (citing Heidigger, Gadamer, and Fish).

[11] Gerald Graff, “Keep off the Grass,” “Drop Dead,” and Other Indeterminacies: A Response to Sanford Levinson, 60 Tex. L. Rev. 405, 405-07 (1982). Concededly, the “hermeneutic circle” has echoes in the “living Constitution”: construing its provisions to reflect the Justices’ political, ideological, and moral values.

[12] Pushaw, supra note 2, at 6-10.

[13] Id. at 17-24.

[14] See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); Wickard v. Filburn, 317 U.S. 111 (1942).

[15] Grant S. Nelson & Robert J. Pushaw, Jr., Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulations but Preserve State Control Over Social Issues, 85 Iowa L. Rev. 1 (1999).

[16] Id. at 9-42.

[17] Id. at 8-11, 42-49, 110-12.

[18] Id. at 9-13, 107-73.

[19] Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001); Richard A. Epstein, The Proper Scope of the Commerce Power, 73 Va. L. Rev. 1387 (1987).

[20] Robert J. Pushaw, Jr. & Grant S. Nelson, A Critique of the Narrow Interpretation of the Commerce Clause, 96 Nw. U. L. Rev. 695, 696-97, 703 (2002).

[21] This conclusion rests on my analysis of all relevant legislation, presidential statements, and cases from 1789 to 1829. See Robert J. Pushaw, Jr., Confirming the Commerce Clause’s Original Meaning: New Insights from Early Federal Government History, 48 BYU L. Rev.__ (2022).

[22] See AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 107-08 (2005); Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1 (2010).

[23] See Robert J. Pushaw, Jr., Obamacare and the Original Meaning of the Commerce Clause: Identifying Historical Limits on Congress's Powers, 2012 U. Ill. L. Rev. 1703, 1705-16.

[24] See AMAR, supra note 22, at 108; Balkin, supra note 22, at 6-11, 22-23, 31-41, 49-51.

[25] Pushaw, supra note 23, at 1709-34, 1738-43, 1754.

[26] See Levinson & Balkin, supra note 1, at 1535, 1566 (acknowledging that interpreters often evade the force of the Constitution’s text by construing it in a novel way, as when the New Deal Court’s expansive reading of the ICC effectively amended the Constitution yet was generally accepted because of massive economic and social changes). Balkin’s recognition that the Court ignored the ICC’s original meaning cannot be squared with his later assertion that the Court somehow captured that meaning.

[27] See Levinson & Balkin, supra note 1; J.M. Balkin & Sanford Levinson, Interpreting Law and Music: Performance Notes on “The Banjo Serenader” and “The Lying Crowd of Jews,” 20 Cardozo L. Rev. 1513 (1999). That approach describes Balkin’s reading of the ICC.

[28] Balkin & Levinson, supra note 27, at 1533-37, 1547-49, 1554-66.

[29] Levinson, supra note 3, at 392-401.

[30] Id. at 398-402. 

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