The inexorable radicalization of textualism.

• Author: Siegel, Jonathan R.

Some scholars have recently suggested that textualism, intentionalism, and purposivism are more similar than is generally realized. These new "accommodationist" scholars claim either that the rival methods share the same goals or even that the methods themselves have become indistinguishable. In fact, as this Article shows, not only does textualism differ fundamentally from intentionalism and purposivism, but the gap between them gets wider with time. Textualism's prime directive--the formalist axiom that statutory text is the law--fundamentally distinguishes textualism from other interpretive methods. Moreover, the formalist axiom has an expansionist logic that causes the gap between textualism and other methods to grow wider as the logical implications of the axiom are worked out. Textualism inexorably radicalizes itself as textualists gradually realize that their axiom compels them to reject moderating influences, such as the "absurd results exception," that accommodationists claim bring interpretive methods together. Intentionalism and purposivism, by contrast, are less dogmatic and better able to absorb the best lessons of rival methods without being untrue to their core principles. Thus, textualism worsens over time, whereas intentionalism and purposivism are better able to improve themselves over time.

INTRODUCTION I. THE INTERPRETATION WARS AND THE ATTEMPTED TRUCE A. The Molot Accords B. The Nelson Agreement C. Manning Moderates II. THE CORE DIFFERENCE A. The Textualists' Prime Directive and the Core Distinction Between Interpretive Methods B. An Allegory and an Example 1. An Allegory 2. An Example C. The Source of the Problem? III. TEXTUALISM WORKING ITSELF PURE A. Absurd Results and Scrivener's Errors B. Consideration of Statutory Purpose 1. Limtiaco 2. Zuni IV. THE FUTURE OF THE INTERPRETATION WARS A. The Future of Textualism 1. Textualism's Problem 2. Textualism's Useful Lesson 3. A Solution for Textualism? B. The Future of Intentionalism and Purposivism CONCLUSION INTRODUCTION

For decades, scholars have divided over how best to interpret statutes, particularly when statutory text pulls in one direction and intent or purpose in another. (1) On one side of the resulting "interpretation wars" stand the textualists, who believe that the goal of statutory interpretation is to identify the objective meaning of statutory text without regard to what any legislator intended that text to mean. (2) Arrayed against them are the intentionalists, who believe that the goal is for courts to implement the intent of the legislature. (3) Also taking the field are the purposivists, who believe that the goal is to identify the purpose of a statute and to interpret it to carry out that purpose. (4) The battles between these methods have raged over decades and have spawned in numerable scholarly commentaries (5) and judicial clashes. (6)

The latest move in the interpretation wars, however, is to declare something of a truce. Textualism, intentionalism, and purposivism are either not all that different or at least not different in the way people usually think. That is the message in recent articles representing a new wave of scholarship that attempts to reach an accommodation among competing interpretive methods. (7)

Professor Jonathan Molot of Georgetown suggests that the interpretation wars are over--because the textualists won. Textualists, in his view, wrested so many concessions from their rivals that textualism and the other methods converged. (8) Molot says that "it has become increasingly difficult for textualists to identify, let alone conquer, any territory that remains between textualism's adherents and nonadherents." (9) Textualists, Molot suggests, should recognize their achievement and declare victory. (10) They should cease to agitate for an "aggressive textualism" that accentuates and radicalizes the differences between them and their opponents. (11) Instead, they should embrace the moderate approaches upon which scholars and judges have converged. (12)

Professor Caleb Nelson of the University of Virginia tells a different story, but it shares the feature of calling attention to a purported similarity between rival schools of interpretive thought. Unlike Molot, Nelson does not claim that textualism and intentionalism have converged--he sees important differences between them. (13) He does, however, suggest that, contrary to popular opinion, the rival methods have the same underlying goal. (14) Textualists, according to Nelson, do not reject the relevance of legislative intent. Rather, both textualists and intentionalists seek to identify and enforce the directives that a legislature intended to establish--they just differ regarding how best to do that. (15)

This new wave of scholarship poses important questions. Has the gap between textualism and rival interpretive methods really narrowed so much that the methods have converged? Do the methods really share the same interpretive goals?

This Article answers these questions. It explains that textualism pursues a different goal than other interpretive methods. The methods also have not converged. Indeed, as this Article suggests, quite the opposite has occurred.

This Article argues that not only do the rival interpretive methods remain distinct, but the fundamental tenets of textualism cause the gap between interpretive methods to widen, not narrow, with time. Textualism's core axiom, this Article shows, causes textualism to make itself progressively more radical and, therefore, less workable. Textualism worsens over time, whereas intentionalism and purposivism are better able to improve themselves over time.

A two-part mechanism causes the inexorable radicalization of textualism. First, the core of textualism is a fundamental, formalist axiom that puts it into inevitable and irreconcilable conflict with other methods. Textualism's fundamental philosophy--its prime directive--is that "[t]he text is the law, and it is the text that must be observed." (16) Once textualists adopt this directive, their war with other methods can never cease.

Second, textualism's prime directive has an expansionist quality that causes textualism to become more radical with time. The logic of textualism's formalist axiom expands inexorably because the law of interpretation is judge-made law, and judge-made law "works itself pure." (17) Over time, judicial and scholarly efforts uncover and highlight aspects of an area of law that conflict with the area's fundamental axioms. Statutory law can contain contradictions and compromises that result from the give and take of the legislative process. But judge-made law yields over time to the force of logical criticism. (18) Aspects of the law that contradict the law's axioms get driven out.

The implacable force of textualism's prime directive must, this Article argues, ultimately drive out the accommodationist impulses of Professors Molot and Nelson. The "aggressive textualism" that Molot deplores is not the unfortunate result of misguided hotheads who misunderstand the best nature of textualism and who are "bent on radicalizing textualism and keeping the debate alive." (19) It is, rather, the inevitable consequence of taking the first step down the textualist road by accepting the axiom that "the text is the law."

Once this step is taken, textualist purity must inevitably squeeze out the contrary pragmatic accommodations that textualism has traditionally allowed. Traditionally, textualism permitted some exceptions to its strict dogma. It allowed courts to depart from statutory text where the text led to an absurd result (20) or resulted from a scrivener's error. (21) More recently, this Article shows, textualists have started to reject these pragmatic escape valves. (22) Ultimately, as the law works itself pure, even consideration of statutory purpose in the resolution of ambiguity--long approved within textualism--is being squeezed out by the force of the fundamental axiom. (23)

Similarly, textualists can never agree with Nelson that they are just seeking legislative intent by a different method. No amount of interpretive theory can justify this view if the text is the law. The drive for textualist purity that is counteracting the convergence of methods perceived by Molot is also contradicting the identity of goals perceived by Nelson.

In the end, therefore, the accommodations sought by Professors Molot and Nelson must fail. In advocating against what he calls "aggressive textualism," Professor Molot gives the textualists excellent advice, but they cannot take it--at least, they cannot take it without ceasing to be textualists. Textualists must, similarly, reject Professor Nelson's reformulation of their methods as simply a better way to seek legislative intent. The force of textualism's fundamental axiom, combined with the tendency of the law to work itself pure, will keep textualists fighting indefinitely.

By contrast, intentionalism and purposivism are better positioned to absorb the best lessons of textualism without being untrue to their own fundamental axioms. Because the prime directives of these other methods are less stark and dogmatic, intentionalism and purposivism can accept useful accommodations with their rival method without being forced to internalize an impossible contradiction. This advantage of intentionalism and purposivism suggests that, should the interpretation wars come to an end, intentionalism and purposivism will be left in possession of the field.

Part I of this Article introduces the Article's theme by briefly recounting the attempts of Professors Molot and Nelson to achieve an accommodation between textualism and other interpretive methods as well as the answer of Professor John Manning of Harvard to these efforts. Part II demonstrates, however, that there is a core, fundamental distinction between textualism and the other methods. Part III then describes how the logic of the core distinction...