How to Choose an Interpretive Method

Bill Watson

Debates over legal interpretation—like those between originalists and living constitutionalists or between textualists and purposivists—are intractable and long-running, with no end in sight. A recent and welcome development in these debates has been increased attention to the background question of how to choose an interpretive method.¹ What kinds of facts or reasons count in favor of any interpretive method? Can a better understanding of the nature of law, language, or interpretation answer which interpretive method is correct or best? Can facts about a community’s law or legal practices do so?² Or must we look instead to normative reasons, i.e., to moral, political, or other reasons that favor acting in some way?

Francisco Urbina’s article, Reasons for Interpretation adds to this growing literature on how to choose an interpretive method. His answer is simple: only normative reasons can ultimately justify an interpretive method. Defending an interpretive method therefore requires reference to things like which method best satisfies deontic constraints, advances democracy or the rule of law, or promotes other values. On the flip side, one cannot defend an interpretive method simply by appealing to facts about the nature of law, language, or interpretation, nor can one defend such a method simply by appealing to facts about our law or legal practices. These facts are relevant to interpretive choices only if and insofar as normative reasons make them so.

Urbina calls this answer to the how-to-choose question “the normative choice thesis.” That thesis aligns closely with what others, including Cass Sunstein, Richard Fallon, and Lawrence Solum, have argued before.³ Urbina’s key contributions are to (1) give a clear and straightforward argument for the normative choice thesis and (2) draw out generally overlooked implications of that thesis for debates among originalists, living constitutionalists, textualists, purposivists, and the like. Although Urbina does not directly enter into these debates or defend one side over any other, he offers constructive advice on how the debates can more productively move forward and on what form any satisfactory interpretive method should likely take.

As I understand it, Urbina’s argument for the normative choice thesis has two premises. First, interpretive methods concern how judges or other officials should act when engaging with a legal text for some purpose, whether that be “deciding a case, declaring what the law is, passing legislation coherent with other norms, or something else” (P. 24.) The choice of an interpretive method is thus a choice to act in some way.⁴ Second, a choice to act in some way must ultimately be justified by normative reasons alone. Facts about our concepts, law, or practices bear on how to act only insofar as they give us normative reasons. From these premises, Urbina concludes that the choice of an interpretive method must ultimately be justified by normative reasons alone.

I will return to this argument shortly, but first I want to highlight one implication that Urbina draws from its conclusion—namely, that interpretive choice is contingent. The normatively best interpretive method may vary according to who is doing the interpreting, what kind of text is being interpreted, the surrounding social or political context, etc. Given these variations, it would be shocking if a single method turned out to be best across the board, for all interpreters in all contexts. Many judges and theorists today publicly identify with a single method (e.g., “I’m a textualist”); but if Urbina is right, they should instead make more limited claims about which method is best relative to performing a specified role in a specified range of contexts.

Crucially, contingency does not entail the absence of regularity. We need not infer that the most that anyone can say about legal interpretation is that judges should exercise normative judgment on a case-by-case basis. Even if no interpretive method is best for all cases, the balance of normative reasons may predictably favor adopting one method in a subset of cases. This result, as Urbina notes, “vindicate[s] the fainthearted” (P. 53.) A common move in interpretive debates is to criticize one’s opponents for inconstancy—for failing to adhere to their interpretive method across the board. But that inconstancy may be a feature, not a bug (providing that a principled line exists between contexts where the method should apply and contexts where it should not).

While I am friendly to Urbina’s argument, I should note a respect in which it may be vulnerable. He offers little support for his first premise, i.e., that interpretive methods are about how judges or other officials should act. In this respect, he does little to engage with Mark Greenberg, Scott Shapiro, and others who deny that premise and claim instead that interpretive methods are about how to discern what the law is.⁵ Likewise, his article may not speak to textualists or originalists who claim that their methods concern how to follow the law. In short, more needs to be said to show that our debates over legal interpretation are centrally about how officials should act; but once we accept that premise, Urbina helpfully demonstrates what follows from it.

Lastly, one might wonder: What accounts for the recent surge of interest in how to choose an interpretive method? My sense is that what Urbina calls the “normative choice thesis” has been largely taken for granted for much of the history of these debates. Earlier participants in the debates—from Justice Scalia to Judge Posner—typically focused on normative reasons for interpreting legal texts one way or another, without seeing a need to explain why normative reasons mattered. More recently, however, an increase in non-normative arguments for interpretive methods (based on general jurisprudence, a community’s law, etc.) has built up pressure to clarify what exactly interpretive methods are and how to adjudicate among them.

Urbina takes up this task of clarifying the ground rules for interpretive debates. More than that, he explains the form that any viable interpretive method is likely to take. We should be wary of sweeping pronouncements about how to interpret legal texts irrespective of an interpreter’s role, the relevant area of the law, and other circumstances. What we need instead are “more tentative, circumscribed, compromising, and, overall, modest proposals for interpretation” (P. 55.)

1. See, e.g., Cass R. Sunstein, How to Interpret the Constitution (2023); Lawrence B. Solum, Outcome Reasons and Process Reasons in Normative Constitutional Theory, 172 Univ. Pa. L. Rev. 913 (2023); Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court (2018); Mark Greenberg, What Makes a Method of Legal Interpretation Correct?: Legal Standards vs. Fundamental Determinants, 130 Harv. L. Rev. F. 105 (2017).
2. See William Baude & Stephen E. Sachs, Grounding Originalism, 113 NW. U. L. Rev. 1455 (2019); William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079 (2017).
3. See, e.g., Sunstein, supra note 1; Fallon, supra note 1. Urbina claims that his normative choice thesis is more “radical” than Sunstein’s or Fallon’s views. Any difference, however, seems to be more a matter of presentation than of substance. Sunstein and Fallon allow that concepts like interpretation and meaning constrain the universe of viable interpretive methods and then argue that only normative reasons can justify selecting any method from within that universe. Urbina starts from a slightly different point: he begins by assuming that interpretive methods are about how officials should act (and not about what our concepts or linguistic or legal practices require). That starting point already has baked into it the limited work that concepts are doing in Sunstein’s and Fallon’s arguments.
4. Urbina consciously employs the term “interpretive method,” rather than “interpretive theory,” to emphasize that positions like textualism, purposivism, originalism, etc., are about how judges or other officials should act.
5. See, e.g., Mark Greenberg, Legal Interpretation and Natural Law, 89 Fordham L. Rev. 109, 129 (2020) (“[L]egal interpretation is best understood as seeking the content of the law.”); Scott J. Shapiro, Legality 354 (2011) (“[T]he debate between textualism and purposivism … concerns … how to follow the law.”).