Textualism and the presumption of reasonable drafting.

• Author: Liu, Cory R.

INTRODUCTION

For much of our nation's history, the Supreme Court has held that the text of a statute should yield to its purpose whenever the two appear to conflict. (1) Even when the text was unambiguous, the Court would often attempt to discern a statute's purpose from historical circumstances (2) and legislative history. (3) Near the end of the twentieth century, however, textualism emerged as a competing approach to statutory interpretation. (4) Textualists rejected inquiries into purpose and argued that judges should interpret statutes according to the meaning of the enacted text. (5) Adherence to textual meaning, they argued, promotes judicial restraint and ensures that judges act as faithful agents of the legislature. (6) The textualist approach to statutory interpretation has been highly influential. Studies have shown that the Supreme Court's use of legislative history has decreased significantly over the past several years, (7) and even the Court's non-textualist Justices have come to agree that inquiries into purpose are unnecessary when the text is unambiguous. (8)

Defining the textualist approach to interpretation, however, has proved to be a surprisingly difficult task. Modern textualism is a far cry from literalism or strict construction. (9) Modern textualists acknowledge that words have no inherent meaning outside of context. (10) They have no problem with relying on interpretive techniques such as semantic canons (11) and structural analysis (12) to resolve textual ambiguities and arrive at meanings that may not be obvious from a plain reading of the text. Textualism "does not admit of a simple definition," but is a sophisticated, context-sensitive approach to statutory interpretation. (13)

When asked to define their interpretive methodology, textualists often state that they are discerning how an objectively reasonable reader at the time of the statute's drafting would have understood the text. (14) This description of textualism, which I shall call the "reasonable reader framework," is problematic for textualists in two ways. First, the reasonable reader framework suggests that textualism is an attempt to approximate how reasonable people actually read statutory texts. However, a recent empirical study by Professors Abbe Gluck and Lisa Schultz Bressman casts doubt on this claim. Professors Gluck and Bressman found that many textualist interpretive methods provide a poor approximation of how congressional staffers actually read statutory texts. (15) If textualism is supposed to approximate how reasonable people read statutes, these findings would undermine the validity of many interpretive methods that textualists routinely use.

The second problem with the reasonable reader framework is that it fails to describe textualism in a way that meaningfully distinguishes it from purposivism. Modern purposivists no longer assert, as the Supreme Court did in Church of the Holy Trinity v. United States, (16) that legislative purpose can override an unambiguous statutory text. Instead, modern purposivists agree with textualists that the text should govern when it is unambiguous, and disagree only about what to do when the text is ambiguous. (17) Because textualists and modern purposivists can both properly be characterized as describing bow a reasonable reader would understand the text, the reasonable reader framework fails to describe textualism in a way that distinguishes it from purposivism.

This Note proposes a new framework for understanding textualism: the reasonable drafter framework. The reasonable drafter framework posits that textualists employ a presumption of reasonable drafting and ask what a reasonable drafter would have intended to convey by the text, rather than what a reasonable reader would have understood the text to mean. The reasonable drafter framework conveys the idea that textualism is not a descriptive account of how reasonable people read texts, but a normative framework for resolving textual ambiguities. The framework avoids the problems of the reasonable reader framework and conveys the unique way in which textualism promotes judicial restraint through a presumption of reasonable drafting.

1. PROBLEMS WITH THE REASONABLE READER FRAMEWORK

   Modern textualists typically describe their interpretive methodology according to the reasonable reader framework, which posits that judges should discern what the statutory text conveyed to a reasonable reader at the time of the statute's drafting. (18) Under this framework, textualists ask how an objectively reasonable person, or a "median legislator," would understand the statutory text. (19) The two judges most often associated with modern textualism, Justice Scalia and Judge Easterbrook, have described textualism along these lines. According to Justice Scalia, the basic interpretive principle of textualism is that judges should endeavor to discern "how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued." (20) As Judge Easterbrook put it, textualists "hear the words as they would sound in the mind of a skilled, objectively reasonable user of words." (21)

   The reasonable reader framework is problematic for textualists, however, in two ways. First, it characterizes textualism as a description of how reasonable people read texts, even though empirical evidence suggests that textualist interpretive methods are a poor approximation of how people read statutory texts. Second, the reasonable reader framework fails to describe textualism in a way that meaningfully distinguishes it from purposivism.

   1. Many Textualist Interpretive Methods Do Not Accurately Describe How Reasonable People Read Texts

      Modern textualists routinely employ context-based interpretive techniques to resolve textual ambiguities and arrive at meanings that are not obvious from a plain reading of the text. One category of textualist interpretive techniques is semantic canons. Semantic canons are rules of thumb about grammar, language use, and punctuation that approximate how a reasonable person uses language. (22) According to the reasonable reader framework, when textualists use semantic canons, they are implicitly assuming that a reasonable reader would read the statute as if it were drafted according to the rules of sensible language use. (23) Yet it is unclear why textualists should want to make this assumption.

      Consider, for example, the presumption of purposeful variation of language, which counsels that when a statute includes particular language in one section and omits that language from another section, the disparate inclusion or exclusion should be presumed to be intentional and purposeful. (24) In Jama v. Immigration and Customs Enforcement, (25) the Attorney General attempted to deport Jama to Somalia pursuant to 8 U.S.C. [section] 1231 (b)(2)(E)(iv), which allows the Attorney General to choose "the country in which the alien was born" as the country of destination for deportation. (26) A subsequent clause of the same subparagraph provided that "if impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph," the alien may be deported to "another country whose government will accept the alien into that country." (27) Jama argued that the word "another" implied that all of the previous clauses of the subparagraph also required consent from the country of destination. (28) Writing for the majority, Justice Scalia rejected Jama's argument. (29) He applied the presumption of purposeful variation, arguing that the Court should "not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply." (30) Because the latter clause explicitly contained a consent requirement, he interpreted the lack of an explicit consent requirement in the earlier clause as a deliberate and purposeful omission. (31)

      According to the reasonable reader framework's account of textualism, Justice Scalia's reliance on this interpretive canon was based on the implicit assumption that a reasonable person would read the statute as if it were drafted according to the rules of sensible language use. Yet a reasonable reader might well conclude that Congress often drafts statutes without adequately proofreading them, and refrain from assuming that Congress followed the rules of sensible language use. It is unclear, under the reasonable reader framework, why textualists should presume that reasonable readers would choose the former approach over the latter.

      The same could be said about all semantic canons of interpretation. Consider the rule of the last antecedent, which counsels that a limiting clause should be read as modifying only the noun or phrase that it immediately follows. (32) In Barnhart v. Thomas, (33) the Court used the rule of the last antecedent to interpret the Social Security Act's definition of a disabled person as a person whose "physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." (34) An administrative law judge found that Pauline Thomas was ineligible for disability benefits...