ASSORTED CANARDS OF CONTEMPORARY LEGAL ANALYSIS: REDUX.

• Author: Barrett, Amy Coney

CONTENTS INTRODUCTION I. TEXTUALISM IS LITERALISM II. A DICTIONARY IS THE TEXTUALIST'S MOST IMPORTANT TOOL III. TEXTUALISTS AND ORIGINALISTS ALWAYS AGREE IV. "[W]E MUST NEVER FORGET, IT IS A CONSTITUTION WE ARE EXPOUNDING." V. JUDICIAL ACTIVISM IS A MEANINGFUL TERM VI. CONGRESSIONAL SILENCE IS ACQUIESCENCE CONCLUSION INTRODUCTION

It would be an honor for me to speak to you at any time, but I'm particularly honored to be doing so now, on the thirtieth anniversary of the Sumner Canary Lecture delivered by Justice Antonin Scalia, my former boss and mentor. His lecture, titled Assorted Canards of Contemporary Legal Analysis, described his "most hated legal canards"--baseless but frequently repeated statements that lawyers are "condemned to read, again and again, in the reported cases." (1) He took aim, for example, at the hoary canon that "remedial statutes are to be broadly construed." He asked, "How are we to know what is a remedial statute?" "Are not all statutes intended to remedy some social problem?" "And why should we construe any statute broadly?" Statutes should be construed neither broadly nor narrowly, but at the level of generality at which they are written. And he bemoaned the well-worn phrase, "A foolish consistency is the hobgoblin of little minds." Why is consistency in the law a bad thing?

Tonight, in the spirit of Justice Scalia's Canary Lecture, I'm going to share my own list of canards.

1. TEXTUALISM IS LITERALISM

   Here is my first: "textualism is literalism." Before I explain why this is false, I ought to begin with a very brief definition of textualism. Textualism, a method of statutory interpretation closely associated with Justice Scalia, insists that judges must construe statutory language consistent with its "ordinary meaning." (2) The law is comprised of words--and textualists emphasize that words mean what they say, not what a judge thinks that they ought to say. For textualists, statutory language is a hard constraint. Fidelity to the law means fidelity to the text as it is written.

   Textualism stands in contrast to purposivism, a method of statutory interpretation that was dominant through much of the twentieth century. For purposivists, statutory language isn't necessarily a hard constraint. As one famous Supreme Court case put it, "[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers." (3) Sometimes, statutory language appears to be in tension with a statute's overarching goal, and when that happens, purposivists argue that a judge should go with the goal rather than the text.

   Today, purposivism is largely out of fashion, at least in its more extreme form. It was once unsurprising to see a judicial opinion stress the importance of adhering to a statute's purpose even at the expense of clear text. Now, however, it's rare to see a judicial opinion asserting the authority to depart from the statutory text in service of the statutory purpose. The shift away from purposivism is largely due to the force of Justice Scalia's arguments. As he put it, "It is the law that governs, not the intent of the lawgiver.... Men may intend what they will; but it is only the laws that they enact which bind us." (4) I won't rehearse all of his arguments against purposivism here, but suffice it to say that they have had a significant effect on the way that lawyers and judges think about the law.

   The fact that textualism has become influential, however, does not mean that everyone understands what it means to be a textualist. And one misunderstanding--held by some of textualism's sympathizers as well as by some of its critics--is that textualism is literalism. Some who have only passing familiarity with the theory assume that textualism requires judges to construe language in a wooden, literalistic way. And that, of course, would lead to absurd results.

   If you want a vivid illustration of the dangers of literalism, consider the pitfalls of translating from one language to another. When I was in college, I spent a summer in France with the primary goal of becoming fluent in French. One evening at dinner, my host asked if I wanted more food, and I responded, translating literally, "Je suis pleine"--"I am full." I was proud of myself for responding in French. But my sentence was greeted with uproarious laughter--and not, as I initially assumed, because I spoke French with a distinctive southeastern Louisiana accent. It was much worse than that. I learned that in French, the phrase "je suis pleine" means "I am pregnant." One could make a similar gaffe by declining food with the phrase "je suis fini " which, literally translated, means "I am finished." In French, though, this phrase means "I am about to expire." Perhaps such mistakes might make one want to expire.

   As a budding French speaker, I was unaware of the nuance. Language is a social construct made possible by shared linguistic conventions among those who speak the language. It cannot be understood out of context, and literalism strips language of its context. As my examples illustrate, fluent speakers of language are not literalists. There is a lot more to understanding language than mechanistically consulting dictionary definitions.

   Textualists understand this, and they have spent more than thirty years driving home the point. Justice Scalia himself insisted that "the good textualist is not a literalist." (5) Still, textualism and literalism are often treated as synonyms. The distinction between them, though, is fundamental to the validity of the textualist enterprise. Here is how one scholar distinguishes the two:

   Literalism should be distinguished from the genuine search for textual meaning based on the way people commonly understand language. Literalism is a kind of "spurious" textualism, unconcerned with how people actually communicate--with how the author wanted to use language or the audience might understand it. It holds up the text in isolation from actual usage. (6) Collapsing the distinction is a strawman when presented by critics of textualism and a dangerous distortion when floated by textualists themselves. It bears emphasis, though, that this might be the most common misperception of textualism. I teach a seminar on statutory interpretation, and after our class on textualism, students routinely say that they were surprised to learn that textualism isn't the same thing as either "literalism" or "strict construction." Despite the best efforts of textualists, the caricature is still around.

2. A DICTIONARY IS THE TEXTUALIST'S MOST IMPORTANT TOOL

   This rejection of literalism bleeds right into the next proposition that I would like to shoot down: "A dictionary is a textualist's most important tool." Don't get me wrong--a dictionary is a tool, and it is one used by interpreters of all stripes. But because textualism isn't literalism, textualists do not come to the enterprise of statutory interpretation armed only with a dictionary. As John Manning--a prominent textualist scholar (and now dean of Harvard Law School)--explains, "[Dictionary definitions of words will often fail to account for settled nuances or background conventions that qualify the literal meaning of language and, in particular, of legal language." (7) A dictionary can help, but it can't get you all the way there.

   Justice Scalia frequently invoked the case Smith v. United States to make this point. (8) In that case, the Supreme Court was faced with the task of deciding what it means to "use a firearm" for purposes of 18 U.S.C. [section] 924(c)(1), a statute that prohibits a felon from using a gun. (9) The majority (of which Justice Scalia was not a member) cited multiple dictionary definitions of the verb "to use" and concluded that "[a]s the dictionary definitions and experience make clear, one can use a firearm in a number of ways." (10) So it held that a person who trades his firearm for drugs "uses" the firearm during a drug-trafficking crime within the meaning of [section] 924(c)(1). (11)

   In dissent, Justice Scalia explained that the fact that a word can be used a certain way does not mean that it is ordinarily used that way or that it was used that way in a particular context. (12) In his view, the majority's reliance on multiple, broad dictionary definitions of what the term "use" could mean violated the "fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used." (13) In typical fashion, he offered a...