Non-Textualism and the Duck Season-Rabbit Season Dramaturgical Dyad: A Response to Professor Cass Sunstein (and others)

Abstract

I amend one word from Professor Sunstein’s conclusion.

It is tempting to think that in the kinds of cases [and texts] that are of concern here, non-textualism is a kind of lie. It might be. But it might also be an honest mistake, a matter of sincerely thinking that you are “seeing that” [which all others see or that which is there to be objectively seen]” when you are actually “seeing as” [which is seeing only one meaning among several potential meanings which others see].” Still, it is a serious problem if a judge does not know that she is seeing as. If she is, in fact, seeing as, she should explain why that is the right way to see, and if she thinks that she is seeing that, she might see no need to offer an explanation.

To illustrate my point, I refer to how non-textualists have developed Hamilton’s Federalist No. 77 in relation to the doctrinal debate on the unitary theory of the executive and the scope of the President’s removal power. My purpose in doing so is not to settle that substantive debate—a matter about which I have no published or settled views. Rather my purpose is methodological: it is to illustrate how non-textualist commentators and their readers “see” and how they choose to support their understanding of what they “see” with historical and other legal materials.