109 Iowa L. Rev. Online 15 (2023)
Abstract
Slogans are a blunt instrument—they may convey something of the truth, but they rarely do so undented. So too is the case with the influential textualism slogans “the text is [the] law,” “only the text [is] the law,” and “[o]nly the written word is the law.” In his insightful Article, Professor Erik Encarnacion shows why these statements are false, as they are category errors. He then observes that these slogans are unnecessary to establishing the core theses of textualism and that these slogans misunderstand and confuse features of textualism. And he is right about all of that.
In this short Response, I consider what these slogans for textualism and interpretation are more generally. First, I show that the category-error argument is potent: It shows that “X is law” statements are generally false. Instead, they must be charitably translated. The problem, however, is that the most plausible translations of the textualist slogans are false; they either require textualists to embrace absurd positions or require textualists to retreat from the very claims that make textualism a distinct theory. The slogans are essentially a Motte and Bailey maneuver: They make bold, ambitious claims, and when challenged, they transform to more defensible, modest claims. In this way, even though the slogans are false, they accurately represent the Motte and Bailey that is modern textualism.