Textualism and the Duck-Rabbit Illusion

Abstract

Textualists insist that judges should follow the ordinary meaning of a legal text, and sometimes texts have an ordinary meaning that judges can follow. But sometimes texts have no such thing, in the sense that they are reasonably susceptible to two or more interpretations. Some textualists fall victim to something like the duck-rabbit illusion. They genuinely see a duck; they insist that a duck is the only thing that reasonable people can see. Their perception is automatic, even though it might have been primed, or a product of preconceptions. But reasonable people might well see a rabbit. Various approaches are possible to determine whether we have a duck or a rabbit; most of them do not turn on the text at all.