February 6, 2007
My Take on Duffy's Post
I haven't thought this through as well as he has, but here's my thoughts. Note that I think we end up at the same place, but through very different paths.
There's something quite wrong, i submit, with applying to the Patent Act the approach to textualism he describes. True, a textualist would say that what the goal is is to determine the meaning of the words, in context, at the time the legislature enacted them.
Why doesn't that black letter approach work here, in my view? Well, after all, the Act was written with innovation in mind, and stems directly from Article 1, clause 8's grant to Congress to promote the Useful Arts. It would be strikingly odd if the words in the Act were construed only to cover those things literally embraced by the words 200 years ago, given the constitutional underpinnings of the statute and the context in which it was enacted. I realize that the norm is to give contemporary meaning, and don't quibble with that in the abstract, but it seems to be quite a strange thing to apply to a statute whose purpose is to look forward. Just because something wasn't "matter" in 1800 ought not control that meaning today, in other words.
More fundamentally, and this is more a quibble with changing interpretive approaches generally than with Professor Duffy's fine piece: why does the interpretive tail wag the meaning dog? Put in more fancy words: why is it that textualism should control how a statute written in the 1860's (and recodified in 1950), should be construed when at the time it was written textualism did not exist? Put bluntly, why is it that because a majority (probably) of the court has changed how courts should interpret statutes, we apply that new approach to statutes that were written at a different time, when different norms applied and so different understanding as to how the words would be interpreted applied? To be truly textualist, ought we not look at what way applied back then? I do not think it likely that Jefferson when writing those words thought, "someday the Supreme Court will (a) be the final arbiter of meaning (Marbury wasn't decided til two decades later) and (b) the court will look at what these words, today, mean to me."
Again, I think we end at the same place, but I don't think that we ought to limit the terms of 101 to what the terms meant in 1793, 1866, or even 1950.
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