The Rise and Fall of Textualism

Abstract

The textualist revolution is over. Textualism's past accomplishments are quite impressive - indeed, much more impressive than either its adherents or detractors are willing to acknowledge. Textualists have been so successful discrediting strong purposivism and updating their new brand of modern textualism that they have forged a new consensus on the interpretive enterprise that dwarfs any remaining disagreements. Yet, by failing to acknowledge their successes to date, textualists are jeopardizing their project. Rather than celebrating the recent convergence and claiming victory, textualists keep waging their war against strong purposivism. In so doing, they misrepresent the moderate views of their opponents and so radicalize their own position as to strip it of its core value. If textualists continue on this course, their opponents will be able to claim credit for the moderate approach that prevails today and textualism will be destined for defeat. This Article offers a different path for textualism. Textualists should celebrate the moderate approach to statutory interpretation that prevails today, note the small differences that remain, and mark the dawn of the post-textualist era. Instead of substituting strong textualism for strong purposivism, scholars and judges should embrace a modest approach to statutory interpretation that heeds the lessons of textualism but avoids its pitfalls.

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