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Abstract: Scholars often claim that judges must defend their choice of interpretive method based on its consequences. But analysis of the nature of interpretation reveals that to interpret something is just to form a judgment about its communicative content. And judgment is essentially aimed at truth, not consequences. A person who defends her approach to forming a “judgment” on a given matter on the ground that the approach 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” on the ground that it leads to desirable consequences, not accurate sums, counts as doing addition.
The most obvious upshot of this conclusion is that it forces defenders of consequentialist and other “normative” approaches to constitutional and statutory adjudication 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 a judgment about communicative content has other implications, too. It supports an unorthodox version of originalism whose justification and doctrinal implications contrast sharply 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.
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