Animal Farm Jurisprudence: Hiding Personal Predilections behind the Plain Language of the Takings Clause

Stephen M. Durden

Abstract

The paper first defines plain language textualism and demonstrates that the Supreme Court and its individual justices as well as many commentators regularly call upon plain language textualism. Next, the paper seeks to determine why these people seek plain language textualism as a constitutional interpretive methodology, attempting to explain what others see as the benefit of that methodology. In other words, the paper presumes that those who use plain language textualism believe that such a method is a better method of interpretation. The paper next reviews the justification for using plain language textualism. The final question concerns how a person ‘plainly‘ interprets the Constitution and whether the application of plain language textualism furthers the justification for using that interpretive methodology. More specifically, this article seeks to demonstrate that plain language textualism, an interpretive method that purports to eliminate the personal predilections of individual justices when interpreting the Constitution, instead ensconces personal predilections and requires inconsistent interpretive methodologies. In order to do so, this paper will review the use of plain meaning or plain language textualism as applied to the Takings Clause. After showing that commentators have asserted at least two very different and inconsistent textualist meanings to the Takings Clause, the paper will demonstrate that even accepting a single meaning of the Takings Clause requires a number of separate non-textual conclusions as to the assumptions to be made as to the application of textualism. On the surface, this paper seeks to demonstrate that plain meaning textualism incorporates the personal predilections of the interpreter. In the end, this paper seeks to be a voice of reason. By demonstrating the inconsistencies in the use of plain meaning textualism, this paper seeks to eliminate interpretive stridency and superiority. This paper seeks to show that even plain meaning textualism, perhaps the simplest (and most simplistic) interpretive methodology, requires non-textual, individual choices by justices. If all justices must resort to individual choices, then such individual choices (often labeled as ‘personal predilections‘) cannot, or at least should not, be labeled as inappropriate (or worse) simply or merely because they are individual choices. The question should be whether the choices that are made make sense, and whether they resonate within the society known as the Supreme Court, the society of the rest of the bench, the bar, and society as a whole.