Aquinas’s Defense of Textualism – James R. Rogers

Writing in the thirteenth century, Thomas Aquinas never used the term “textualism” in his discussions of law in the Summa Theologica. He did, however, basically discuss the issue in two different treatises in the Summa and commends a pretty straightforward textualist approach to reading “written law.”

In his “Treatise on Prudence and Justice” in the Summa, Aquinas discusses the question “Whether we should always judge according to the written law?” (ST II-II, Q. 60, a. 5). In his “Treatise on Law,” Aquinas discusses the question “Whether he who is under a law may act beside the letter of the law?” (ST I-II, Q. 96, a. 6). While overlapping, the two questions address different people in different roles. In the former question, Aquinas addresses judges as they interpret law in their official capacity. In the latter question, Aquinas addresses common folk who are “under a law” regarding their personal obligation to obey that law.

Whether anachronistic or not, why might we care what anyone opined about textualism over 750 years ago? As an initial matter, due to Aquinas’s continued visibility, commentators and scholars arguing about textualism often invoke Aquinas to support their views. Former Supreme Court Justice Stephen Breyer cites Aquinas in his recent book for the claim that judges have asked “purpose-oriented questions” when interpreting laws “for hundreds if not thousands of years.” So, too, Harvard Law Professor Adrian Vermeule invokes Aquinas in his book Common Good Constitutionalism, distinguishing a classical version of textualism, which he identifies with Aquinas, from what he styles as the modern textualism of Justice Scalia and textualist justices currently on the Supreme Court.

More generally, it is because Aquinas discussed textualism 750 years ago that his arguments might be helpful to survey today. Whatever his private motivations might have been for discussing the issue in the thirteenth century, he couldn’t have been carrying water for one side or another in today’s legal debates; his view of interpreting legal texts couldn’t be a proxy for a set of substantive legal positions in twenty-first-century America.

Aquinas and the Sine Qua Non of Textualism

Aquinas orients his discussion in the Summa’s “Treatise on Prudence and Justice” to judges and others who have “authority” (ST II-II, Q. 60, a. 1, ad. 4). Here Aquinas affirms the sine qua non of textualism:

Since judgment should be pronounced according to the written law[,] … he that pronounces judgments, interprets, in a way, the letter of the law, by applying it to some particular case. … Just as a law cannot be made save by public authority, so neither can a judgment be pronounced except by public authority, which extends over those who are subject to the community. (ST II-II, Q. 60, a. 6)

We can draw on Aquinas even here to underscore a fundamental point about textualism that often gets lost in the debate: textualism, properly speaking, is not a theory of interpretation; it is a theory about what gets interpreted.

The first move of textualism is what Ronald Dworkin terms a “preinterpretive” move. That is, it is a stage at which a legal text is “identified and distinguished” from other texts. This may seem so obvious that it does not really merit notice, let alone comment. After all, the thought goes, “of course everyone agrees what it is that is being interpreted.”

But I’m not sure as a practical matter that everyone agrees on what texts are being interpreted. Even at an ostensibly preinterpretive stage, there can be some slipperiness in what in fact it is that is being interpreted.

It is because Aquinas discussed textualism 750 years ago that his arguments might be helpful to survey today.

In Cooper v. Aaron, for example, the Supreme Court includes its own decisions interpreting the Constitution and federal statutes along with these latter two texts as “the supreme law of the land.” The Court seemingly lists its decisions as a part of “the Constitution” that it interprets. Because of the significance of the issue at stake, and the Court’s (understandable) exasperation at southern states attempting to delay implementing its Brown decision, the Court slips around just what texts are the supreme law of the land. Equating its own decisions as the supreme law of the land means that the written text of the Constitution (as amended) is not a privileged textual dimension in the interpretive process; the text is not identified at a distinct “preinterpretive stage” and then is interpreted by subsequent decisions.

Rather, in the decision, “the Constitution” is part of a textual stew that not only includes the original text but also includes the text of subsequent decisions that interpreted the written text.

So, too, in his book, Reading the Constitution, former Justice Stephen Breyer treats the written text of the Constitution as just one ingredient of a constitutional stew:

The language of the Constitution will sometimes help [with interpreting the Constitution], say by setting boundaries for the interpreter. So will history and practice. Precedent may prove useful[,] … values (or purposes) matter; and so do consequences[,] … which of the relevant matters—e.g., text, values, consequences—the judge should emphasize will vary depending on the circumstances.

Listing a legal text as one of a set of equally “relevant matters” obscures identifying text as a distinct stage that precedes interpretation. Consider whether we would apply Breyer’s methodological approach in another interpretive context. Think, for example, of an English class studying a Shakespeare play. It is difficult to think the teacher would talk about “the language of the play will sometimes help.” To be sure, there may be numerous additional sources that students might draw on to help interpret the play, but it is the text of the play that these other sources are drawn on to interpret. The text is the material for interpretation; it is not one of a set of sources that might be helpful to interpretation. Like the lexicographic ordering of a dictionary, the text is an initial, privileged dimension that cannot be interpretively traded off against ways subsequently to interpret the text.

The problem doesn’t pertain only to critics of textualism. In moving too quickly to identify textualism with “original public meaning” (or some other interpretive approach), textualists can also invite conflating what is being interpreted with how one approaches the text to interpret it. To be sure, how one interprets the text is critically important. But rushing to that step can gloss over the distinct preinterpretive move of identifying exactly what text it is that we are interpreting. In Aquinas’s approach, he commends that we first identify “the letter of the law,” then move to a subsequent stage of providing a reasonable reading of that text.

Textualism and Equitable Interpretation

Justice Breyer cites Aquinas for the proposition that courts have applied “purpose-oriented” interpretation for “hundreds, if not thousands of years.” Aquinas, he writes, “understood the letter of the law to yield to ‘natural right’ and ‘equity’ where an overly wooden interpretation would frustrate the aims of the law.”

Breyer’s reading of Aquinas, however, has Aquinas’s exception swallowing Aquinas’s rule. Aquinas’s main proposition, after all, is that “it is necessary to judge according to the written law.” Breyer skips over Aquinas’s discussion of this main thesis and instead cites Aquinas’s reply to an objection as though it were his main point. In fact, Aquinas’s reply to this objection is accommodated in the modern era by judicial doctrines such as rationality review and “necessity,” doctrines that even textualists accept and apply.

Before getting to Aquinas’s reply to the objections he articulates, we should note Aquinas’s main thesis. In his reply to the question “whether we should always judge according to the written law” (ST II-II, Q. 60, a. 6), Aquinas first quotes Augustine:

In these earthly laws, though men judge about them when they are making them, when once they are established and passed, the judges may judge no longer of them, but according to them.

The quotation from Augustine draws on the distinction between an official acting in a legislative capacity and an official acting in a judicial capacity. While not a separation-of-power argument, it is certainly a separation-of-role argument.

Next, moving beyond the quotation from Augustine, Aquinas sets out his own view, observing first that there is both natural right and positive right, and that “laws are written for the purpose of manifesting both these rights.” Written law “manifests” these rights “in different ways,” given that written law “contains” natural right but does not establish its authority—nature does—while a written law both contains and establishes the authority of positive law. (The authority of positive law is established by human agreement or custom rather than by nature.)

From these starting points, Aquinas concludes, “Hence it is necessary to judge according to the written law, else judgment would fall short either of the natural or of the positive right” (emphasis added). Significantly, for Aquinas, natural law implies that textualism is a requirement for judges.

Aquinas’s approach to interpretation would reject both Breyer’s purposivism and older forms of “original intentions originalism” (this as opposed to textualist originalism).

Aquinas then discusses two cases in which judges should not apply laws as written. Importantly, when we translate these cases into modern jurisprudential categories, the two cases Aquinas discusses are not exceptional. Today’s textualist judges typically read texts consistent with Aquinas’s provisos.

The first case Aquinas discusses is when the law itself is unjust. The second case is when a particular application of the written law produces an unjust and harsh outcome.

Breyer cites Aquinas’s discussion in the second of these cases as supporting his view of purpose-oriented interpretation.

Aquinas quotes Justinian on this point: “By no reason of law, or favor of equity, is it allowable for us to interpret harshly, and render burdensome, those useful measures which have been enacted for the welfare of man.”

We can glimpse what Aquinas means here by looking at his related discussion in the Summa’s “Treatise on Law.”

A word of caution, however, before proceeding. Aquinas’s “Treatise on Law” is often treated as though it were an abstract discussion of law. It is not.

Unlike his discussion of judgment, which Aquinas aims primarily at officeholders, Aquinas’s “Treatise on Law” speaks primarily to those “under law.” Within the broad intellectual agenda of the Summa, Aquinas intends the “Treatise on Law” to speak to law as an “extrinsic principle” by which God instructs humans for good (and God then enables humans to do that good by grace).

While the first quarter of Aquinas’s “Treatise on Law” receives the most attention in discussions of jurisprudence (Questions 90 through 97), that section only develops the framework for the major work Aquinas does in the treatise, which is his discussion in Questions 98-108 of Old and New Testament laws. The bulk of Aquinas’s discussion in the treatise is focused on providing an answer to a pertinent Biblical question Christians face: identifying what aspects of the Old Testament law continue to oblige Christians and what aspects do not.

With that cautionary word, let’s consider Aquinas’s discussion of written law in his “Treatise on Law.” In Question 96, Aquinas provides an example of interpreting a law in the “harsh” and “burdensome” manner that Justinian discusses:

For instance, suppose that in a besieged city it be an established law that the gates of the city are to be kept closed, this is good for public welfare as a general rule: but, if it were to happen that the enemy are in pursuit of certain citizens, who are defenders of the city, it would be a great loss to the city, if the gates were not opened to them: and so in that case the gates ought to be opened, contrary to the letter of the law, in order to maintain the common weal, which the lawgiver had in view. (ST I-II, Q. 96, a. 6, co.)

Aquinas’s specific application in this Treatise is that law does not oblige obedience in this situation. We can apply Aquinas’s discussion to a judge overseeing a trial of a person accused of breaking this law in the situation Aquinas describes. Aquinas would presumably have the judge allow the accused to assert a defense of necessity, as presumably a modern American judge would as well. To be sure, today we would not call a defense an interpretation of the statute, but that’s not a problem regarding the point Aquinas makes.

Or in the alternative, a judge today might conclude that the prosecution’s construction of the statute is an “absurd result.” This is an interpretive doctrine admitted by the late textualist Justice Scalia.

So, too, Aquinas provides that if there be any doubt regarding the effect of a law, a person must resolve the doubt to “act according to the letter of the law, or consult those in power.”

Again, Aquinas’s immediate point concerns the person “under” the law, which a judge is not (at least not in the same way). Nonetheless, Aquinas’s insight that the law should be applied as written if there is any “doubt” whether the law would result in harm maps onto the minimal rationality test that modern US judges apply to laws. That is, that a law must be sustained if it can plausibly be understood to be rationally related to a legitimate governmental objective.

Aquinas’s approach to interpreting legal text would seem to side with Scalia’s criticism of the Supreme Court’s unanimous decision in Church of the Holy Trinity v. United States when it wrote, “It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Aquinas’s approach to interpretation would reject both Breyer’s purposivism and older forms of “original intentions originalism” (this as opposed to textualist originalism).

The point is that modern-day textualist judges apply approaches similar to Aquinas’s as a matter of course. But that’s not really a surprise. Aquinas defined law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated” (ST I-II, Q. 90, a. 4, co.). In reading and applying a legal text, this approach would seem to invite the judge to apply Scalia’s essential textualist approach: “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”