Textualism and Context (Especially as to Terms of Art):

A reader faults my "free state" analysis on these grounds:

The author introduces extrinsic evidence when the document is internally consistent and clear within its 4 corners.

Some of the extrinsic evidence comes from unrelated political systems and writers unfamiliar with the new governing scheme created by the Framers. Extrinsic evidence supporting the internally consistent definition, such as lawmakers' floor statements, are not considered; indeed, only extrinsic sources supporting the author's definition definition are discussed at length.

He then goes on to elaborate,

I should have said, "the document is internally consistent and thus clear within its 4 corners." That is, one can get a clear definition of "state" on context alone without extrinsic evidence.

Assume you have no dictionary and have no idea what "state" means. You read the Constitution and Bill of Rights, and for 116 out of 116 times the documents use the word "state," context alone indicates that "state" means one of the 50 recognized jurisdictions and not the District. You would judge, based from this text/context, that the "state" in the 2d Amend referred to the same. Of course, EV is correct that one still needs a dictionary and/or understanding of English for the remaining words, but these sources aren't typically considered extrinsic evidence. (perhaps because dictinaries and language knowledge offer every definition of a word, whereas typical extrinsic evidence does not)

This the goal of textualism, yes? That all words in a document have clear meaning based on the text of the document alone, coupled with a knowledge of the language of the text? (of course even textualism allows departing from a dictionary definition where the text specifically redefines a word)

The political branches ought to have incentives to observe textualist rules. Even assuming that the change from "country" to "state" was stylistic, to rely on extrinsic evidence to correct the textualist mistake eliminates this incentive. It permits Congress to pass whatever ambiguous, permissive language will get a majority, improperly delegating to the courts the determination of what the law ought to be.

"Textualism" is a useful label, and textualists do care about the text. But I know of no textualist who thinks that we should ignore context, and in particular the possibility that a particular textual provision was a legal term of art at the time the law was enacted. I think such an entirely acontextual textualism (perhaps we might think of it as "literalism," though even that assumes the conclusion about what the text literally means) is senseless for reasons I've mentioned in other posts in this chain. But in any event it is no textualism I've ever heard legal scholars advocate.

Let's begin with a simple example: How would and should a textualist deal with the Double Jeopardy Clause, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"? Should he say that it applies only to subsequent prosecutions where either the death penalty or dismemberment is at stake? (Does it perhaps apply chiefly to those soldiers who are "quartered in any house" with the owner's consent?) Or should he consider the possibility that "life or limb" is a legal term of art that doesn't mean what "life or limb" normally would?

Likewise, it turns out that the Constitution and the Bill of Rights do not always use "State" to mean "state of the union," even setting aside the Second Amendment: Two clauses of the constitution refer to "foreign State." Would we say that, because nearly all occurrences of "State" mean "one of the United States" or a "member state of a union," the "foreign State" provisions must refer to foreign members of the United States, or perhaps foreign semi-sovereigns that are part of some broader confederacy -- so that, for instance, federal officials couldn't accept offices or titles from the Swiss cantons (as states in a union), but could accept them from Japan (which is not a state in a union)? Or would we recognize that the term "State" in the phrase "foreign State" means something different from "State" in other contexts?

"Free State" is much like this. My article offers what I think is strong evidence that "free State" meant "nondespotically governed country." Blackstone used it this way. Montesquieu used it this way. Cato's Letters used it this way. Hume's Essays used it this way. Many other writers that the Framers read used it, almost exclusively this way. There's thus very good reason to think that when Americans who were raised on those works wrote or read that phrase, they understood it as precisely the same term of art, just as they understood "life or limb" as a term of art or "Suits at common law" as a term of art. No textualist I know of would ignore such evidence, just to give future Congresses an incentive to avoid all legal terms of art (something that would be a pretty hopeless cause in any event).