It Means What It Says

• Author: Bryan A. Garner
• Pages: 28-29

It Means

What It Says

Old-fashioned textualism is all about

interpretation, not legislating from bench

By Bryan A. Garner

You’ve probably heard recently about

the “Gorsuch brief ”—a brief that ma kes

closely analyzed t extual arguments

based on gramma rs and dictionaries—

and about how progressive advocat es

are relying more and more on Sca lia-

style textua lism. These subjects have

been much in the news. You may also

know that Justices Ruth Bader Gin sburg and Stephen G.

Breyer typical ly analyze interpretive questions by focu s-

ing on four elements in this order: (1) text, (2) structure,

(3) purpose a nd (4) legislative history. That technique

was begun embryon ically by Justice Robert H. Jackson

and carried i nto mature development by Justice David

Souter. As Justice Elena Kaga n said famously a few years

ago, “We’re all textualists now.”

While consequentiali sts think about ideal results (be st

policies for the future) and purposiv ists think about

broad legislative purpo ses (what Congress ha d in mind),

textuali sts consider the words actually adopted. A s

Justice Oliver Wendell Holmes declared in a 1930 opin-

ion, “There is no warrant for seek ing refi ned argu ments

to show that the statute does not mea n what it says.”

Of course, this subjec t can be politically dangerous—

especially when we’re tal king about constitu-

tional as opposed to sta tutory interpretation.

So I’ll leave constitut ional interpretation to

the side and talk here about some fi ne points

of statutory inter pretation. Being pretty apo-

litical myself, I’ ll try to refrain from polic y

arguments and hew to t he text. In any ques-

tion of interpretation, policy i s bound to rear

its head. But it’s always good to make a t ex-

tual argu ment fi rst.

This approach is old-fashioned. The con-

ventional view has alw ays been that to inter-

pret is to do a fi nite number of things relating

to understanding what words me an in their

context. Some act ivities exceed its ambit: to

expand, to tw ist, to contort, to stret ch,

to interpolate, to re strict, to bend,

to make exceptions to, to ig nore, to

evade, to fl out, to repeal, to nullif y, to

abrogate. Judges are often ur ged to

engage in these activ ities, but they

aren’t interpretation.

The 18th-century v iew, as expres sed by the commenta-

tor John Raithby, was that “our laws ... have been framed

... by the suggestions of deliberative w isdom.” Although

these laws may sometimes prove imperfec t, “our judges ...

are not at liberty t o dispense with them, or to alter them.”

Another scholar of the period, Fr ancis Sullivan,

explained why he thought judges, “the di spensers of

justice,” must “follow the strict let ter of the positive laws;

lest, under the pretense of ex plaining and extending

them, the most valuable privi leges of the people might be

betrayed or rendered illusory.” In sum, departing from

the enacted words is a st ratagem that can be used for any

possible political end.

IT’S NOT POLITICAL

So the ideal textu alist is content-neutral, at

least in theory. Justice Louis Bra ndeis warned

that “we must be ever on our guar d, lest we

erect our prejudices into legal pr inciples. ”

If you feel I’m getting political here, I don’t

mean to. We’re talking about statute s in a

mainstream w ay. That’s why Chief Justice John

Marshall wr ote in an 1804 opinion that “a law

is the best expositor of its elf. ” Courts can’t sub-

stitute their words for the legisl ature’s.

But what if the legislature is dy sfunctional?

A revered British commentator says t hat in the

United Kingdom, Parliament “is in a st ate

of acute malfu nction, producing laws

which are excessive in qua ntity and

defi cient in qua lity. ” The same might be

said of American leg islatures, where

scrutiny has been m inimized on the

pretext of a shortage of t ime. Some

28 || ABA JOURNAL APRIL 2019

PHOTOS BY PAUL J. RICHARDS/AFP/GETTY IMAGES AND BY WINN FUQUA PHOTOGRAPHY

Bryan

Garner

on Words

FOLLOW ON TWITT ER

@BryanAGarner

“WE’RE ALL

TEXTUALISTS

NOW.”

—JUSTICE ELENA KAGAN

Practice