Introduction
A high school biology teacher was traveling on a train from Nantes to Paris. She had with her, in a wicker basket, twenty live snails. The train conductor asked her what was in the basket; she told him; and the conductor then said, “You must buy a ticket for the snails.” “That’s ridiculous,” the teacher replied. “Well,” said the conductor, “read the fare rules. They say, ‘Passengers cannot bring animals on the train except in a basket, in which case they must buy a ticket for the animals.’” “But,” protested the teacher, “it means dogs or cats or perhaps rabbits, not snails.” “Doesn’t it say ‘animals,’” said the conductor, “and isn’t a snail an animal?” (pp. xv–xvi)1
It’s with this nonhypothetical hypothetical that Justice Stephen Breyer opens his recent book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism. As one would expect from one of the country’s most eminent and consequential jurists, Justice Breyer’s book is an exceptionally important contribution to the ongoing debate about how American judges should interpret and apply written legal texts. And to be clear, we do mean all such texts. Justice Breyer’s title undersells his book’s scope. It isn’t just about constitutional interpretation, although there’s plenty of that; rather, more ambitiously — and we think more helpfully — Justice Breyer aims to articulate and defend a grand unified theory of interpretation, one that applies not only to the Constitution but to ordinary laws, as well.
Justice Breyer uses the snails-on-a-train anecdote — which, as it turns out, is based on a real-life incident he read about in a French newspaper — as a launching pad for his examination of interpretive philosophies (p. xv). The decisive question the story presents, of course, is whether the teacher needs a ticket for her snails — whether they are properly understood to be “animals” within the meaning of the fare rule. And we quite agree with Justice Breyer that the tale nicely tees up the methodological contest that is the subject of his book. Respectfully, though, we disagree with his resolution of that contest. Although he never quite comes right out and says so, it’s clear enough that Justice Breyer casts his lot with the teacher: It would be silly, he intimates, to interpret the term “animals” to mean, well, all “animals,” including snails — and, therefore, we just shouldn’t do so. At the risk of spoiling the surprise, and for reasons we’ll explain in detail, we dissent. However odd the consequences of its application in this particular case, the fare rule says what it says, and respect for the rule of law — or in Justice Breyer’s hypo, the rule of rules — requires allegiance to the promulgated text.
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Justice Breyer frames the methodological debate as one between his own preferred approach, which he calls “pragmatism,” and a contender he likes a lot less, which he labels “textualism.” And while we understand the distinction he’s drawing, of course, we think it’ll be useful, right at the outset, to clarify some terminology. First, Justice Breyer sometimes uses the now-familiar terms “textualism” and “originalism” as (effective) synonyms, but at other times he treats them as related but distinct — the former, he says, being an approach used to construe statutes, and the latter, unique to the interpretation of the Constitution (p. xx). Reasonable minds can disagree about whether textualism and originalism denote different things or are instead fundamentally one and the same. We needn’t split hairs here; what matters for present purposes is that both are text-focused approaches that aim to accomplish the same basic objective — namely, to discern the common, ordinary meaning of words on a page at the time of a document’s adoption. At bottom, both textualism and originalism are types (and expressions) of legal “formalism” — which, broadly speaking, emphasizes adherence to promulgated rules and (relative) agnosticism to social, moral, and economic considerations and consequences. Accordingly — and for simplicity’s sake — we’ll refer to both textualism and originalism, wherever possible, as “formalism.”
Second, what of formalism’s methodological opposite — that is, Justice Breyer’s preferred approach? In the book, he refers to it at times as “pragmatic” (p. xxvi) and at other times as “purpose-based” (p. 5). Wherever possible, we’ll use the former. As we understand it — in the present context anyway — “pragmatism” refers to a relatively fluid, pliable, and unstructured interpretive philosophy that seeks to discern a written text’s meaning by reference to a variety of factors, one (but only one) of which is its underlying purpose. A pragmatic judge will also look, for instance, as Justice Breyer repeatedly says, to “consequences,” “values,” and, ultimately, to his own “judicial instinct[s]” (pp. 3, 94). So again, for simplicity’s sake — and because we think it more accurately captures the entirety of the approach that Justice Breyer advocates — we’ll go with “pragmatism.”
Before diving headlong into the jurisprudential debate, one more preface: Why should we care about the method by which judges interpret legal texts? Well, because, as Justice Breyer rightly explains in the book’s preface, at least in this country — and increasingly so with each passing day — the overwhelming majority of the law by which society is ordered is written down. Of course, the British tradition from which this country’s legal system emerged was different. Perhaps most notably, England didn’t (and doesn’t) have a written constitution. Famously — and momentously for world history — we do. So too, for many centuries, ordinary, subconstitutional law was largely unwritten — it, the “common law,” was the product of a gradual, evolutionary process by which judges deciding discrete cases articulated, elaborated, and calibrated legal rules and principles. No longer. Today — again, at least in this country — most law is promulgated in written form by some sovereign agent, be it a legislature or (more controversially) an administrative agency. So, as Justice Breyer correctly says, the job of any American federal appellate judge — whether he or she sits on the Supreme Court or, instead, on what the Constitution calls an “inferior court” like ours — “consist[s] primarily of reading documents and helping to decide what they mean and how they apply to facts before the Court in a particular case” (p. xv).
So of course it matters how judges go about interpreting written legal texts. And Justice Breyer’s book is dedicated to probing the differences between two of the more prominent interpretive philosophies. Our review will explore those differences and will aim, in particular, to evaluate several of the key claims that Justice Breyer makes about the methodologies’ respective merits and demerits.
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With those preliminaries out of the way, let’s unpack, with Justice Breyer, the differences between what we’ve called formalism and pragmatism. And what better way to begin than exactly as the Justice does: with snails on a train.
To reset the stage, the question presented in Justice Breyer’s hypo is whether snails are “animals” within the meaning of the fare rule — which, again, provides that “[p]assengers cannot bring animals on the train except in a basket, in which case they must buy a ticket for the animals” (p. xv). Most formalists, we suspect, would answer that question simply, and quickly: Of course they are. So far as we can tell, anyway, standard and legal dictionaries invariably list some version of the following as the top two definitions of the word “animal,” both of which clearly include snails: (1) any non-plant living organism that feeds on organic matter, possesses a “central nervous system” and “sense organs,” “respond[s] to stimuli,” and “move[s] voluntarily”; and (2) “any such [organism] other than a human being.”2 Given the context here3 — a rule authorizing human “[p]assengers” to bring “animals” onto the train only if they’re “in a basket” — we’re inclined to think that the slightly narrower definition of the word “animal,” to mean all non-plant living organisms except human beings, is probably the best fit. The point, though, is that one has to dig pretty deep — and do some serious dictionary shopping — to find a definition that excludes snails.4
So yes, the formalist says, the teacher needs a ticket for her snails.5 Now, does that seem weird — or even, as the teacher protested, a little “ridiculous”? Perhaps, the formalist answers, but so what? The judge’s job, he insists, is simply to read and apply the rule as it’s written, not to make it better, or smoother, or more sensible. After all, the formalist asks, if we’re not going to interpret the fare rule according to its plain language — which pretty clearly covers the snails — then what’s our criterion? Where, and according to what, do we draw the line between snails (which one’s gut might suggest shouldn’t need a ticket) and hamsters (perhaps less ridiculous) and dogs (perhaps even less so)?
But, a pragmatist like Justice Breyer responds, such slavish devotion to ordinary meaning too often yields goofy results. By looking to “purposes, consequences, and values,” the judge can arrive at a more rational, “workable” regulatory framework (p. xvii). (“Workability,” as we’ll see, is Justice Breyer’s North Star.) Tellingly, though, Justice Breyer never really follows up on the snails-on-a-train hypo. To be sure, the implication seems to be that he thinks the teacher shouldn’t have to buy the ticket. But what exactly does a “workable” fare rule look like? Where exactly would Justice Breyer draw the line? And on exactly what basis — how would consideration of the fare rule’s supposed purposes, the consequences of this interpretation or that, and the values of train travel inform that judgment?
We don’t think there are very good answers to those questions — which is perhaps why Justice Breyer ultimately (and repeatedly) acknowledges that under his approach, many close interpretive calls will boil down to the judge’s own subjective “instinct.” From that, we must respectfully dissent — because that, we submit, is the rule of man, not the rule of law. But we’re getting ahead of ourselves. Before offering our critique, we should discharge our primary obligation, which is to review.6
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* Judge Newsom serves on the U.S. Court of Appeals for the Eleventh Circuit.
** Ms. Frederick is Judge Newsom’s career law clerk, chief of staff, and éminence grise. The views expressed here are our own and do not necessarily represent those of the court or any of its other members. For their comments on drafts and invaluable research assistance, we thank our incomparable family of term clerks.