Tag: equity

pure textualism and legal ambiguity

Commentators today have taken interest in a pointed footnote of Justice Jackson’s dissent in Stanley v. City of Sanford, Florida (p. 23, note 12). I’ve included below a screenshot of the note:

I find Jackson’s argument here fascinating (and compelling) in light of my recent writing on legal equity, particularly in the concept’s Aristotelian tradition. Above, Jackson criticizes the majority’s embrace of “pure textualism”—that is, the majority’s “refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve.” Such “pure textualism,” in effect, closes off a major method of grappling with the “ambiguous text” of a statute, empowering the Court to “disguise” their own interpretive practices in order to “secure the majority’s desired outcome.” In other words, tossing out any investigation into legislative intent leaves judges with little else to work with aside from their own presuppositions and personal aims, changing linguistic ambiguity from a question for research into a moment to exploit.

What caught my eye here is how a “refusal to try to understand … what Congress sought to achieve” is a rejection of Aristotle’s approach to legal interpretation in the Nicomachean Ethics. In that text, Aristotle foresees how general laws will need to be applied to unforeseen, particular cases. We will be left, he argues, to “rectify the deficiency [of the law] by reference to what the lawgiver himself would have said if he had been there and, if he had known about the case, would have laid down in law.” (This principle of “rectifying” the law by excavating its intent and bending it around individual cases is what Aristotle calls epieikeia, later translated as aequitas or “equity.”)

As I lay out in the third chapter of my book, Americans of the 1780s similarly understood how a law’s “consequences were not foreseen by the Legislature” and that, therefore, judges would need to reinterpret laws according to legislative intent (p. 81). In fact, it was understood even in this post-Revolutionary period that attending just to the strict text of the law “resulted in a confusion that wicked men turned to their private advantage” (p. 80). The American Founders and their contemporaries, then, would seem to agree with Justice Jackson. Groveling before the “pure text” of the law and refusing to consider “Congress’s aims” runs against both Greco-Roman attitudes toward statutory ambiguity and an early American embrace of legal equity as a necessary check on judicial corruption.

future of the past on learning to be fair

My department’s “Future of the Past” podcast recently invited me to talk about my new book Learning to Be Fair. It was a good opportunity to bounce around some ideas about civic education, government efforts to regulate discussions of “equity,” and the durable paradoxes surrounding “fairness” that arise from various authors in the Greco-Roman tradition.

You can find the episode at Apple Podcasts or wherever you get your podcasts, or you can listen in the player below:

learning to be fair

My book Learning to Be Fair: Equity from Classical Philosophy to Contemporary Politics will arrive on bookstore and library shelves on December 10, and it’s now available for pre-order at your favorite retailers, including Bookshop.org and Amazon. Here’s the jacket blurb for a quick overview:

The language of “equity” saturates our contemporary culture. Human-resources departments lead workshops on “diversity, equity, and inclusion.” Progressive politicians advocate for “equity” in novel programs for housing and healthcare while their conservative counterparts decry “equity” as a revolutionary rejection of traditional notions of equality and freedom. By excavating texts from antiquity to the modern age, Learning to Be Fair undercuts the supposed novelty of “equity” and anchors it in the foundations of Western philosophy. Despite its newfound popularity (or infamy), in fact, the concept of equity stands as one of the oldest, most durable, and often most paradoxical principles of ethical and political thought. In Learning to Be Fair, Charles McNamara draws out the ancient origins of equity in classical Greek and Roman authors and traces their influence on lawyers, philosophers, America’s Founding Fathers, and even our contemporary culture. He shows how this history connects current debates about the role of equity to long-standing, unsettled questions about equality before the law and the possibility of teaching people to be good.

I’m happy to have had the opportunity to dig into this contentious terminology and provide some clarity about how and why we struggle with the ancient and modern ideas of fairness, equality, and the law. Here’s what some early readers have said:


This marvelously balanced, penetrating, and eminently readable interdisciplinary study of “equity” deftly grapples with the historical and linguistic complexity in the use of the word, and brings much-needed light into overheated contemporary debates about how to foster equity and equality in various cultural settings. The volume would be a welcome guide and companion not just for academics and students seeking to better understand the concept, but also for administrators, policymakers and legal professionals grappling with practical questions of when and how to bend the rules and for what purpose.
Amy Uelmen, director for mission and ministry, Georgetown University Law Center, and lecturer in religion and professional life, Georgetown University


With impressive historical knowledge and moral insight, McNamara helps us move beyond the narrow confines of procedural justice to consider questions of substantive fairness. He shows us how the venerable concept of equity can provide guidance not only for today, but also for the future of our diverse and pluralistic societies.
Cathleen Kaveny, Libby Professor of Law and Theology, Boston College


With Learning to Be Fair, Charles McNamara offers timely assistance to readers at every level who are struggling to understand the roots and sources of our present-day conversations about equity in the workplace, on our campuses, and in public life. Written in an accessible way that spares no effort to explore the richness of how our civilization came to understand and value equity, McNamara’s book belongs in the board room as much as the classroom. Every reader could profit from Learning to Be Fair as a guide to navigate these challenging conversations today–conversations McNamara assures us are as ancient as they are contemporary.
Steven P. Millies, professor of public theology and director of the Bernardin Center, Catholic Theological Union