Charles F. Capps (Arizona State University (ASU) – Sandra Day O’Connor College of Law) has posted What Interpretation Just Is and Why It Matters on SSRN. Here is the abstract:
Scholars often claim that judges must defend their interpretive method based on its consequences. But an analysis of interpretation reveals that to interpret something is just to form a judgment about its intended meaning. And judgment is essentially aimed at truth, not consequences. A person who adopts a method of forming a “judgment” on a given matter because the method leads to desirable consequences, not the truth of the matter, does not count as forming a judgment at all—any more than someone who adopts a method of “addition” because it leads to desirable consequences, not accurate sums, counts as doing addition.
The most obvious upshot of this conclusion is that it forces those who urge judges to select a method of “interpretation” on consequentialist or other normative grounds to confront the fact that what they are advocating is not interpretation at all, casting doubt on whether it is consistent with respect for the authority of the Constitution and Congress. But interpretation’s nature as judgment about intended meaning has other implications, too. It supports a heterodox version of originalism whose justification and doctrinal implications contrast with popular versions of the theory. And it requires retheorizing so-called “substantive” canons of construction as linguistic canons, with ramifications for the canons’ strength and scope, the role of critical theory in assessing courts’ use of the canons, and the relevance of law-and-economics analysis to the interpretation of private-law instruments such as wills and contracts.
[Comments and criticisms are welcome. I may spin off the section on canons of construction into its own article.]
Highly recommended.