I Do Not Think It Means What you Think it Means: How Kripke and Wittgenstein\u27s Analysis on Rule following Undermines Justice Scalia\u27s Textualism and Originalism

This Article deals with constitutional hermeneutics. Hermeneutics is the art or theory of interpretation. Deciding what the constitutionally appropriate rule is in any given case hinges on what methods any particular judge utilizes to interpret the Constitution. Constitutional hermeneutics, then, is the theory of constitutional interpretation. In this paper, I address a specific constitutional hermeneutic: textualism-originalism. This Article is a critique of the constitutional hermeneutic of textualism-originalism. As such, my thesis is that the model of interpretation embodied by textualism-originalism cannot possibly serve to do what its proponents assert it does: constrain judicial interpretation. This is because textualism-originalism depends on two seemingly innocuous premises: (1) rules, including meta-rules, are determinate (that is, rules can determine outcomes in and of themselves); and (2) rules of interpretation exist antecedent to a judge\u27s application of that rule.This Article seeks to challenge these premises. The means for this challenge is the later philosophy of Ludwig Wittgenstein, supplemented by the analysis of several legal pragmatists: John Dewey, William James, and Judge Richard Posner. My thesis is two-pronged: (1) because meta-rules, like any other rules, are indeterminate, the picture of constitutional interpretation that relies on meta-rules to constrain judicial discretion is mistaken; and (2) assuming arguendo that Wittgenstein\u27s analysis shows that rules are actually determinate, the efficacy of textualism-originalism is still not preserved because meta-rules do not exist antecedent to the question presented in any individual case. The first premise seems a stronger claim to me insofar as it challenges the determinacy and meaning of all rules. Accordingly, I will call the first argument the “strong thesis” and the second argument the “weak thesis.” In Part II of this Article, I trace a traditional model of legal rule-following. Part III illustrates how textualism-originalism follows this traditional model. Part IV, the meat of this paper, analyzes and critiques textualism-originalism utilizing the philosophies of Wittgenstein and Kripke. Finally, Dewey\u27s analysis provides the transition into Part V, which concludes with my answer to Professor Cohen\u27s question—my perspective on how judges actually decide cases