The New Textualists' New Text

Abstract

The past two decades have seen a polarized debate in both the courts and legal academic literature between those who regard themselves as textualists on the one hand, and those who advocate for courts using a broader range of evidence on the other. Gone largely unnoticed in the battles between these camps during the past quarter century is the fact that both sides in the debate agree upon almost everything when it comes to statutory interpretation. Most of whom textualists call intentionalists are really not that at all. Rather, they take a pragmatic, eclectic approach to the interpretation of statutes. By the same token, textualists do not eschew all context in the interpretation of statutes, as a cartoon-like description of the approach may suggest. To the contrary, proponents of both approaches find no difficulty looking at the earlier interpretive decisions of courts, background assumptions shared by the relevant community, constitutional considerations, questions of coherence with related statutes, and a host of other considerations. Only some context disturbs textualists, i.e., legislative history adduced as evidence of legislative intent, which they regard as an illegitimate. Recent writings from textualists explain how textualism can lead to results in disputed cases that are sensitive to a statute's purpose without resorting to extratextual materials that create both evidentiary and conceptual difficulties. By adopting an enriched approach to language as an initial matter, a view that considers context an important element of how we speak and understand language generally, textualist practice is able to internalize a great deal of contextual information while at the same time maintaining procedures less likely to lead courts into a decision-making process that conflicts with basic values such as separation of powers. The key intellectual decision is to focus on the ordinary meaning of statutory words, rather than on their plain meaning, as found in dictionary definitions. The shift from focusing on dictionaries to ordinary usage should be seen as an additional step toward reconciling textualist methodology with the goal of providing an interpretation that reflects a statute's purpose. If so, it is worth asking how well it achieves this goal. This Article argues that in many circumstances it does so very well. Nonetheless, there are several recurring situations in which the textualist effort falls short, even on its own terms.

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