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University of Chicago law professor William P. Baude discussed moving “beyond textualism” — a form of legal interpretation that draws conclusions based primarily on the plain meaning of legal documents — at Harvard Law School’s annual Scalia lecture held Monday.
The lecture, established in 2013 to honor the late Supreme Court Justice Antonin Scalia, has previously featured Supreme Court Justice Elena Kagan, former Supreme Court Justice Stephen Breyer, and Law School Dean John F. Manning ’82.
In opening remarks, Manning welcomed Justice Scalia’s wife Maureen M. Scalia ’60 to the event and spoke about his memories of the justice.
“As Justice Scalia’s law clerk, I got to know him very well. He loved the law, he loved ideas, and perhaps, above all, he loved to mix it up,” Manning said. “That’s how he learned and that’s how he encouraged others to learn.”
Following Manning’s introductory address, Baude opened his lecture by saying he was “honored and thrilled” to be speaking at the event, quipping that he believed he had “watched every Scalia lecture available on YouTube.”
Baude, the faculty director of UChicago’s Constitutional Law Institute, said textualism in its current form falls short, because without additional information, textualist interpretations can often fail to provide concrete answers.
“The problem is that the text itself, even the text supplemented by something like the original meaning of the text, is incomplete,” he said. “It gives incomplete or misleading answers to important questions about the law, and so it needs to be supplemented with attention to our entire legal framework, because our legal system relies not just on written texts but also unwritten law.”
He provided examples of “unwritten law,” which he described as including common law that predates the Constitution, “unwritten principles” — such as the idea that the legal system is “not supposed to hold the whole legislature liable for having enacted an unconstitutional statute” — and the canons of construction, which are the rules used to interpret legal text.
“We need unwritten law as a backdrop against which to read legal texts. We need unwritten law to understand the common law system, the real common law system, not the system of judge-made law that has usurped it,” Baude said. “And we need unwritten law because our legal texts sometimes point us toward it, and we need to know how to accept the invitation.”
He emphasized that using unwritten law to aid the interpretation of written law does not stray from textualist principles.
“Textualism, to a first approximation, is central to the rule of law. But to a second approximation, we sometimes need to use other legal rules, like unwritten law, and doing so is completely consistent with the reasons that we use legal texts,” he said.
Baude said that not considering unwritten law risks “leading us to close our eyes to the meaning of the constitutional text,” noting that failing to teach students to use unwritten law to aid textualism would lead students astray.
“If we do not teach our students how to do these things, if we do not revive the more fundamental pre-realist tenets of our legal tradition, then our students will be misled into thinking that the only choices are the plain text and judicial policymaking,” Baude said.
“That is not true, and I will take my chances in saying so,” he added.
—Staff writer Neil H. Shah can be reached at firstname.lastname@example.org. Follow him on Twitter @neilhshah15.
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