Textualism: Definition, and 20 Reasons Why Textualism is Preferable to Other Methods of Statutory Interpretation.

AuthorNewcombe, Caroline Bermeo

TABLE OF CONTENTS ABSTRACT TABLE OF CONTENTS 140 INTRODUCTION 141 I. DEFINITION OF TEXTUALISM, AND OTHER FOUNDATIONAL THEORIES OF STATUTORY INTERPRETATION 142 A. Definition of Textualism 142 B. Definition of Purposivism 147 C. Definition of Intentionalism 149 II. DEFINITION OF LEGAL PRAGMATISM 151 A. Judge Posner's Description of Pragmatic Decision-making 152 III. WHY TEXTUALISM IS PREFERABLE TO PURPOSIVISM AND INTENTIONALISM 154 A. Five Reasons Why Textualism is Preferable to Purposivism 154 B. Four Reasons Why Textualism is Preferable to Intentionalism 156 IV. ELEVEN REASONS WHY TEXTUALISM IS PREFERABLE TO LEGAL PRAGMATISM 160 A. Pragmatism is Undemocratic 160 B. Pragmatic Decision-making Resembles Legislation Rather than Adjudication 162 C. Pragmatic Judges Improperly Assume the Role of Common Law Judges 168 D. Pragmatic Decisions Tempt Legislators to Avoid Making Controversial Political Choices Themselves 172 E. Pragmatic Judges Believe that they Should "Update" Federal Statutes 174 F. Textualism is Preferable to Pragmatism Because Textualism is Based on Law that Provides "Fair Notice" to Anyone Affected by it 179 G. Textualists Generally Prefer Precedent 181 H. Textualist Decision-making is Based on What the Law Compels, Even if the Judge May Not Personally "Like" the Result 182 I. Constraint is the General Reason Why Textualism Should be Favored Over Pragmatism and Other Methods of Statutory Interpretation 183 J. The Intellectual Roots of Pragmatism Lie in a Philosophy of Relativism 187 K. The Intellectual Roots of Pragmatism Also Lie in a Philosophy of Realism. "Realists" Begin with the "Right" Outcome First, Whereas Textualists are Rule Orientated 188 CONCLUSION 192 INTRODUCTION

When Justice Elena Kagan announced that "we're all textualists now," she was referring to a method of statutory interpretation, pioneered by Justice Scalia, known as textualism. (1) During the Supreme Court confirmation process, Justice Amy Coney Barrett was asked about her "commitment to a textualist theory," (2) and whether she shared Justice Scalia's judicial philosophy. (3) But why is the method that a judge chooses to decide a case so important? It is because most cases that come before federal courts today involve issues of statutory interpretation, (4) and the method of interpretation a court chooses can determine the outcome of a case. (5)

This article has three purposes. One purpose is to define textualism, as well as three other methods of statutory interpretation. Another purpose is to provide examples of textualism by quoting from judicial opinions, academic writings, and testimony before the Senate Judiciary Committee. However, the primary purpose of this article is to provide twenty reasons why textualism is preferable to other methods of statutory interpretation, especially legal pragmatism. In particular, this article will discuss five reasons why textualism is preferable to purposivism, four reasons why textualism is preferable to intentionalism, and eleven reasons why textualism is preferable to legal pragmatism.

The structure of this article is in four parts. Part I will define textualism, along with two other foundational theories of statutory interpretation. Part II will define legal pragmatism. Part III will discuss reasons why textualism is preferable to purposivism and intentionalism. Part IV will provide reasons why textualism is preferable to legal pragmatism and briefly discuss the fact that political liberals can be conservative jurists.


    Textualism is one of three foundational theories of statutory interpretation. (6) The other two foundational theories are legislative intent ("intentionalism") and legislative purpose ("purposivism"). (7) These approaches are considered foundational because they each emphasize one ground, or "foundation," as a basis for statutory interpretation. (8) In addition to these foundational approaches, other judges follow a fourth approach to statutory interpretation known as legal pragmatism. Pragmatism--which has been characterized as "antifoundational" (9)--will be discussed following a discussion of the three foundational theories.

    1. Definition of Textualism

      Textualism is the most popular of the foundational theories of statutory interpretation. (10) Judges and scholars have emphasized a variety of factors to describe textualism. One textualist judge emphasizes that "statutory text" should provide the foundation for statutory meaning. (11) A textualist Supreme Court justice emphasizes that a court's inquiry should begin and end with the statutory text. (12) This means that a federal statute is not merely a point of departure (or "springboard") for a court to move beyond the text into the realm of judicial lawmaking. (13) Instead, textualists believe that the job of a court is to follow the law contained in the text of the statute, not change it to conform "with the judge's view of sound policy." (14) Other textualists emphasize that only the text of the statute has been enacted into law, and extrinsic material, such as legislative history; (15) what a judge thinks a statute should say; (16) or abstract notions of "doing justice," (17) should be rejected as the basis of statutory interpretation.

      As the examples above illustrate, textualists are generally opposed to relying on external sources to interpret a statute. (18) Instead, textualist analysis focuses on the objective meaning of words contained in the text of the statute. (19) This is not to say that textualists rely only on the text of a statute and nothing else. Textualists recognize that words in a statute can only be understood in context. (20) This can mean "semantic context," (21) which includes looking at the historic, or (what this article will call) "temporal" context. Specifically, textualists believe that words used in the text of a statute should be interpreted according to what a reasonable person would have understood the words to mean at the time of a statute's enactment. (22)

      However, textualists are not blind literalists. (23) Textualists rely on the "ordinary meaning rule" as a basic rule of statutory interpretation. (24) The rule provides that words in a statute are not to be interpreted according to their literal meaning, but rather according to their ordinary meaning. (25) This means that when a judge is faced with an issue of statutory interpretation, the judge should apply the meaning that an ordinary person would understand from the text of a statute. (26) For example, Justice Scalia dissented from a decision to allow the conviction of a defendant (who offered to trade a gun for cocaine), because the defendant was charged under a statute for using a firearm during a drug trafficking crime. (27) Justice Scalia argued that words in a statute should be given their ordinary meaning, and that the ordinary meaning of "using a firearm" means using it as a weapon, not "as an article of commerce." (28)

      In addition to the ordinary meaning rule, textualists also rely on the dictionary definition of words as an aid to statutory interpretation. (29) However, this does not mean that textualists approach statutory interpretation using only a dictionary. (30) Instead, dictionaries are tools used to provide evidence that a term can "bear a certain meaning, not as conclusive evidence of what a term means in context." (31)

      Textualists also use "canons" of statutory construction. (32) An example of a canon of construction is the "whole-text canon," which provides that, in interpreting a section of a statute, a court should look at the language of the "statute as a whole." (33) Although textualists consider canons important, they are not mandatory; textualists do not regard canons as rules, but as "factors to be considered" and "tools of statutory construction." (34)

      Another feature of textualism is reliance on the plain meaning rule. (35) This rule provides that if the text of a statute is clear, or "plain," then it should be applied as it is written unless this would lead to an absurdity. (36) It is important to note that although the plain meaning rule is limited by the "absurdity doctrine," (37) absurdity does not mean "bad legislative choices." (38)

      Textualists also believe in legislative supremacy. (39) Legislative supremacy is a doctrine which provides that when a court takes on the role of statutory interpreter, its role is subordinate to that of the legislature. (40) The foundation of legislative supremacy is in Article I of the Constitution. (41) The doctrine is designed to preclude "judicial policymaking" when a statute clear. (42)

      An important characteristic of the doctrine of legislative supremacy (as well as textualism itself) is that textualist judges believe that they should still follow the text of a statute, even if they may not personally like the result of a decision they make. (43) Textualist Justice Gorsuch emphasized this when he testified that "a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for policy results he prefers rather than those the law compels." (44) Similarly, about the doctrine of legislative supremacy, a law professor explained that "the court must give way, even if its own view of public policy is quite different." (45)

    2. Definition of Purposivism

      In addition to textualism, a second foundational theory of statutory interpretation is legislative purpose. (46) As their name suggests, purposivists go beyond the words contained in the statute's text and focus on a statute's overall purpose or "general aims." (47) Specifically, purposivists believe that statutes should "be interpreted to achieve the broad purposes that their drafters had in mind," (48) and that "primacy should be given to the perceived spirit of a statute--even at the expense of the letter of the law." (49) An example of a purposivist approach to statutory interpretation...

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