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Textualist Canons: Cabining Rules Or Predilective Tools Stephen M Campbell Law Review Volume 33 Article 3 Issue 1 Fall 2010 2010 Textualist Canons: Cabining Rules or Predilective Tools Stephen M. Durden Follow this and additional works at: http://scholarship.law.campbell.edu/clr Part of the Constitutional Law Commons Recommended Citation Stephen M. Durden, Textualist Canons: Cabining Rules or Predilective Tools, 33 Campbell L. Rev. 115 (2010). This Article is brought to you for free and open access by Scholarly Repository @ Campbell University School of Law. It has been accepted for inclusion in Campbell Law Review by an authorized administrator of Scholarly Repository @ Campbell University School of Law. Durden: Textualist Canons: Cabining Rules or Predilective Tools Textualist Canons: Cabining Rules or Predilective Tools STEPHEN M. DURDEN* INTRODUCTION Justice Scalia proclaims homage to the "dead" Constitution.' Justice Brennan honors the "living" Constitution.2 Others believe in "a partially living and partially dead Constitution."' But, whichever moniker se- lected, constitutional analysis remains (to the interpreter) personal; however, personal does not necessarily mean irrational or even singular (i.e., that no one else agrees with the interpretation). Rather, personal means that no matter how narrow the interpretational method, an inter- preter of the Constitution inevitably makes personal choices when using any interpretational method - choices not required by, or perhaps even inconsistent with, the chosen interpretational method. * Professor of Law, Florida Coastal School of Law. I can never thank my family and friends enough. 1. See generally Sanford Levinson, Our Schizoid Approach to the United States Con- stitution: Competing Narrative of Constitutional Dynamism and Stasis, 84 IND. L.J. 1337, 1346 (2009) (describing Antonin Scalia as "the proud devotee of a 'dead' Constitution"); Reva B. Siegel, Heller and Originalism's Dead Hand-In Theory and Practice, 56 UCLA L. REv 1399, 1408 (noting that in "many speeches" Justice Scalia has called for a "dead con- stitution"); Roy L. Brooks, Toward a Post-Atonement America: The Supreme Court's Atone- ment for Slavery and Jim Crow, 57 U. KAN. L. REv. 739, 747 (2009) (describing Justice Scalia's "dead constitution"); William H. Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693, 693 (1976) (discussing a "dead" Constitution nearly 35 years ago). 2. See generally James L. Buckley, The Constitution and the Courts: A Question of Le- gitimacy, 24 HARv. J.L. & PUB. POL'Y 189, 199 (2000) (recognizing the sophisticated ar- guments in support of Justice Brennan's "living" Constitution); Bernard Schwartz, "Bren- nan vs. Rehnquist" - Mirror Images in Constitutional Construction, 19 OKLA. CITY U. L. REV. 213, 239 (1994) (discussing the interpretational approaches used by Brennan and Rehn- quist); Thomas B. Colby & Peter J. Smith, Living Originalism, 59 DUKE L.J. 239, 263 (2009) (describing Justice Brennan as "a leading proponent of the theory of the living constitution"). 3. See generally Christopher R. Green, Originalism and the Sense-Reference Distinc- tion, 50 ST. Louis U. L.J. 555, 559 (2006) (discussing the author's opinion that "we have a partially living and partially dead Constitution"). 115 Published by Scholarly Repository @ Campbell University School of Law, 2010 1 Campbell Law Review, Vol. 33, Iss. 1 [2010], Art. 3 116 CAMPBELL LAW REVIEW [Vol. 33:115 This Article uses canons of construction to demonstrate that tex- tualism,4 particularly plain language or plain meaning textualism,' can- not be applied without the use of non-textual personal choices. But, this Article does not seek to demonstrate that interpreting the Constitution requires ignoring the text of the Constitution; nor does this Article seek to demonstrate that textualist approaches lack relevance or value. Ra- ther, this Article seeks to demonstrate that textualism cannot create rules that avoid personal predilections' and does not create neutral principles7 or eliminate predilective interpretation.8 In order to accomplish this 4. See generally Stephen M. Durden, Animal Farm Jurisprudence: Hiding Personal Predilections Behind the "PlainLanguage" of the Takings Clause, 25 PACE ENvTL. L. REV 355 (2008) (discussing the failures of textualism based on plain meaning). 5. See generally Stephen M. Durden, Plain Language Textualism: Some Personal Pre- dilections Are More Equal Than Others, 26 QUINNIPIAC L. REV. 337 (2008) (discussing the use and meaning of plain language or plain meaning textualism). 6. See Durden, supra note 4; Durden, supra note 5; see also Larry Cata' Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113 PENN ST. L. REV. 671, 710 (2009) (arguing that constitutionalism seeks to "avoid judicial despotism by forcing judicial discourse to privilege forms of analysis that reduce the ability of judges to substitute their personal predilections for that of the community"); Tom Levinson, Confrontation, Fidelity, Transformation: The "Fundamental- ist"Judicial Persona ofJustice Antonin Scalia, 26 PACE L. REv. 445, 470 (2006) (discussing Justice Scalia's view that a judge's duty requires textualism, or at least some form of tex- tualism, in order to "avoid importing [the judge's] own personal predilections into the text"). 7. But see J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253, 264 (2009) (declaring, without discussion, that textualism is a neutral principle); William Michael Treanor, Taking Text Too Seriously: Modern Textual- ism, Original Meaning and the Case of Amar's Bill of Rights, 106 MICH. L. REV. 487, 494 (2007) ("Modem textualists embrace an approach that, at its core, involves a popularly enacted document (the Constitution) using a methodology that reflects neutral prin- ciples (the principles of close-reading textualism) rather than the constitutional ideology of the interpreter."); Todd J. Zywicki, The Rule of Law, Freedom and Prosperity, 10 SuP. CT. ECON. REV. 1, 4 (2003) ("T[he] core and traditional definition of the rule of law con- tains three basic values or concepts: (1) constitutionalism; (2) rule-based decision- making; and (3) a commitment to neutral principles, such as federalism, separation of powers, and textualism."). 8. See Ofer Raban, The Supreme Court's Endorsement of a PoliticizedJudiciary: A Phi- losophic Critique, 8 J L. Soc'Y 114, 124 (2007) (citing Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REv. 863, 849-65 (1989)) (explaining that "textualism comes as a solution to the danger of moral or ideological judicial decision-making"); Daniel S. Goldberg, I Do Not Think It Means What You Think It Means: How Kripke and Wittgens- tein's Analysis on Rule Following Underminesjustice Scalia's Textualism and Originalism, 54 CLEV. ST. L. REV. 273, 274 n.4 (2006) ("The raison d'etre of textualism is judicial minimal- ism - to prevent judges from deciding cases according to their own predilections rather than on the law."). http://scholarship.law.campbell.edu/clr/vol33/iss1/3 2 Durden: Textualist Canons: Cabining Rules or Predilective Tools 2010] TEXTUALIST CANONS 117 goal, this Article reviews a variety of canons of construction and applies them to the Takings Clause.' II. PLAIN MEANING OF THE TAKINGS CLAUSE This Article assumes, for discussion purposes, that the Takings Clause contains plain language,"o thereby limiting its reach to claims arising from a government either taking possession of," or title to,' 2 property. Accordingly, this Article assumes that the plain language of the Takings Clause precludes all claims not arising from the government taking possession or title' 3 (i.e., regulatory takings claims). Ideally, this 9. U.S. CONST. amend. V. 10. Numerous commentators write about and suggest the existence of a "plain meaning" to the Takings Clause. See, e.g., Wayne McCormack, Lochner, Liberty, Proper- ty, and Human Rights, 1 N.Y.U. J. L. 432, 443 n.74 (2005); Eric R. Claeys, Takings and Private Property on the Rehnquist Court, 99 Nw. U. L. REv. 187, 206, 221 (2004); Eric R. Claeys, Takings, Regulations, and Natural Property Rights, 88 CORNELL L. REV. 1549, 1564, 1665 (2003); Andrew S. Gold, The Diminishing Equivalence Between Regulatory Takings and Physical Takings, 107 DICK. L. REv. 571, 588 (2003); Henry A. Span, Public Choice Theory and the Political Utility of the Takings Clause, 40 IDAHO L. REv. 11, 96, 102 n.373 (2003); Kenneth Salzberg, "Takings" as Due Process, or Due Process as "Takings"?, 36 VAL. U. L. REV. 413, 420 n.42 (2002); Ronald J. Krotoszynski, Jr., Expropriatory Intent: Defin- ing the Proper Boundaries of Substantive Due Process and the Takings Clause, 80 N.C. L. REV. 713, 771 n.245 (2002); John D. Echeverria, Does a Regulation That Fails To Advance a Legitimate Governmental Interest Result in a Regulatory Taking?, 29 ENVTL. L. 853, 875 (1999). 11. See, e.g., Mark Tunick, Constitutional Protections of Private Property: Decoupling the Takings and Due Process Clauses, 3 U. PA. J. CONST. L. 885, 897 (2001) ("There is some evidence that until the end of the nineteenth century, courts regarded the Takings Clause as protecting possession only, not value."); John F. Hart, Land Use Law in the Ear- ly Republic and the Original Meaning of the Takings Clause, 94 Nw. U. L. REv. 1099, 1134 (2000) (explaining that early courts used "a conventional, plain meaning" to the Takings Clause, limiting its application to government action that took "title or possession"); Ti- mothy J. Dowling, Reflections on Urban Sprawl, Smart Growth, and the Fifth Amendment, 148 U. PA. L. REv. 873, 881-82 (2000) ("The term 'take' most naturally refers to an actual expropriation of property . ."). 12. Hart, supra note 11, at 1134 (defining "appropriating private property" as "de- priving the owner of title or possession" and noting that "[rleading the phrase 'property . taken' to indicate appropriation was a conventional, plain meaning"). 13. See, e.g., Tunick, supra note 11, at 893-94 ("The words of the Takings Clause are clear: [the] government may not take--that is, confiscate, appropriate, seize, remove, force one to relinquish or transfer title of--one's property, without providing just com- pensation.
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