John D. Ohlendorf

John Ohlendorf is an Olin-Searle-Smith Fellow in Law at Northwestern University School of Law. He graduated from Harvard Law School in 2010 and clerked on the U.S. Court of Appeals for the Eighth Circuit the following year. His areas of interest include statutory interpretation, constitutional law, and federal jurisdiction, and his current research, building on insights from the philosophy of language, focuses on the role of context and implication in statutory interpretation.

Stanley Fish—A Generation Behind on Textualism

July 19, 2012

In a recent article for the New York Times, Stanley Fish critiques the defense of textualism offered by Justice Scalia and Bryan Garner in their important new book, Reading Law. Despite his qualms about its central position, Fish has high praise for the book, which he calls entertaining and “wonderful.” Along the way, he also dispatches Living Constitutionalism as “a form of political gerrymandering rather than as a form of interpretation.”

In this post, I’d like to respond to Fish’s critique. In brief, Fish articulates two lines of attack: 1) Statutory meaning is not “‘in the text’ in the sense Scalia and Garner insist on,” and 2) All interpretation “begins and ends” with “the assumption or specification of an intention without which there would be no text . . . .” Both arguments draw on Fish’s influential body of scholarship dating back to the 1970s; both arguments show their age. The first argument has teeth only against an archaic version of statutory formalism that has been roundly rejected by modern textualists; the second has little relevance to the “second generation” of textualism that has emerged over the last decade.

Fish’s first argument rightly emphasizes the importance of context in the interpretation of texts. This line of attack harkens back to a snarky little debate he had with Ronald Dworkin in the 1980s over the “objectivity” of interpretation. The centerpiece of the argument is Fish’s discussion of the ambiguity of the word “draft.” As he notes, the sentence “let’s avoid the draft” is ambiguous between several meanings, such as “let’s get out of military service” or (spoken by a general manager of a professional sports team) “let’s trust in free agency.” Moreover, Fish insists that “the dream of adding enough words to a text so that its meaning is clear and indisputable cannot be realized,” noting that the expanded sentence “let’s avoid the draft and go to Canada” is, though more prolix, still susceptible to both meanings. Fish concludes that meaning just isn’t “in the text” in any deep sense.

Of course, Fish has rigged the example here. “Let’s avoid the draft and go to Canada” may not resolve the ambiguity, but how about “let’s avoid the military draft.” Indeed, it’s hard to state the argument without falsifying it — since to get the point through, Fish has to communicate to his readers both alternative meanings that the ambiguous sentence might take, and he has to communicate these meanings by means of a text! Nonetheless, Fish needn’t have cheapened his argument by relying on a jiggered example. Ambiguity (multiple meanings of the word “draft”) will often be resolved by a sentence’s syntax or the meaning of other words in the sentence, but not always — and occasionally, context will create ambiguity where none otherwise appears. Moreover, there are plenty of other ways in which resorting to context is indispensable to textual interpretation, and textualists are happy to concede the point. (None other than Justice Scalia once wrote that “In textual interpretation, context is everything.”) Read More »