Textualism

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Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or substantive questions of the justice and rectitude of the law.

The textualist will "look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words."[1] The textualist thus does not give weight to legislative history materials when attempting to ascertain the meaning of a text. Textualism is often erroneously conflated with originalism, and is advocated by Supreme Court Justices such as Hugo Black and Antonin Scalia, who staked out his claim in his 1997 Tanner Lecture: "[it] is the law that governs, not the intent of the lawgiver." Oliver Wendell Holmes, Jr., although not a textualist himself, well-captured the philosophy, and its rejection of intentionalism: "We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used ... We do not inquire what the legislature meant; we ask only what the statutes mean."[2]

Strict constructionism is often misused by laypersons and critics as a synonym for textualism. Nevertheless, although a textualist can be a strict constructionist, they are separate views: Justice Scalia, for example, warns that "[t]extualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be.... A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."[3] Similarly, textualism should not be confused with the "plain meaning" approach, a simpler theory used prominently by the Burger Court in cases such as Tennessee Valley Authority v. Hill, which looked to the dictionary definitions of words, without reference to common public understanding or context.

Methods[edit]

Textualism looks to the ordinary meaning of the language of the text, but it looks at the ordinary meaning of the text, not merely the possible range of meaning of each of its constituent words (see Noscitur a sociis):

The statute excludes only merchandise "of foreign manufacture," which the majority says might mean "manufactured by a foreigner" rather than "manufactured in a foreign country." I think not. Words, like syllables, acquire meaning not in isolation but within their context. While looking up the separate word "foreign" in a dictionary might produce the reading the majority suggests, that approach would also interpret the phrase "I have a foreign object in my eye" as referring, perhaps, to something from Italy. The phrase "of foreign manufacture" is a common usage, well understood to mean "manufactured abroad."
K-Mart v. Cartier, 486 U.S. 281, 319 (1988) Scalia, J., concurring in part and dissenting in part.

As an illustrative example, Justice Scalia refers to a case in which the law provided for a longer sentence when the defendant "uses a firearm" "during and in relation to" a "drug trafficking crime." In the case, the defendant had offered to trade an unloaded gun as barter for cocaine, and the majority (wrongly, in his view) took this meeting the standard for the enhanced penalty. He writes that "a proper textualist" would have decided differently:

The phrase "uses a gun" fairly connoted use of a gun for what guns are normally used for, that is, as a weapon. As I put the point in my dissent, when you ask someone, "Do you use a cane?" you are not inquiring whether he has hung his grandfather's antique cane as a decoration in the hallway.[4]

Justice Scalia has also written:

The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated-a compatibility which, by a benign fiction, we assume Congress always has in mind. I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a result different from the one that these factors suggest.
Green v Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) Scalia, J., concurring.

Textualists do not, generally, accept the authority of the Courts to "refine" statutes:

Even if we were to assume, however, contrary to all reason, that every constitutional claim is ipso facto more worthy, and every statutory claim less worthy, of judicial review, there would be no basis for writing that preference into a statute that makes no distinction between the two. We have rejected such judicial rewriting of legislation even in the more appealing situation where particular applications of a statute are not merely less desirable but in fact raise "grave constitutional doubts." That, we have said, only permits us to adopt one rather than another permissible reading of the statute, but not, by altering its terms, "to ignore the legislative will in order to avoid constitutional adjudication."
Webster v. Doe, 486 U.S. 592, 619 Scalia, J., dissenting.

Textualists acknowledge the interpretive doctrine of lapsus linguae (slip of the tongue), also called "scrivener's error." This doctrine accounts for the situation when on the very face of the statute, it is apparent that there is a mistake of expression. (See, e.g., United States v. X-Citement Video, 513 U.S. 64) (1994) (Scalia, J., dissenting) ("I have been willing, in the case of civil statutes, to acknowledge a doctrine of 'scrivener's error' that permits a court to give an unusual (though not unheard of) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result") and even break it (see, e.g., Green v. Bock Laundry Machine Co., 490 U.S. 504, 527) (1989) (Scalia, J., concurring) ("We are confronted here with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional, result. Our task is to give some alternative meaning to the word "defendant" in Federal Rule of Evidence 609(a)(1) that avoids this consequence; and then to determine whether Rule 609(a)(1) excludes the operation of Federal Rule of Evidence 403.") Other textualists might reach alternative conclusions. Scalia's apparent inconsistency is perhaps explained by his choice to sometimes adhere to the more venerable judicial canons of interpretation, such as the constitutional avoidance canon.

The word "textualism” was first used by Mark Pattison in 1863 to criticize Puritan theology, according to the Oxford English Dictionary.[5] Justice Robert Jackson first used the word "textualism" in a Supreme Court opinion a century later in Youngstown Sheet & Tube Co. v. Sawyer.[6]

In his article, "Must Formalism Be Defended Empirically?" Professor Cass Sunstein begins by stating:

In the Nazi period, German judges rejected formalism. They did not rely on the ordinary or original meaning of legal texts. On the contrary, they thought that statutes should be construed in accordance with the spirit of the age, defined by reference to the Nazi regime. They thought that courts could carry out their task "only if they do not remain glued to the letter of the law, but rather penetrate its inner core in their interpretations and do their part to see that the aims of the lawmaker are realized." [...] After the war, the Allied forces faced a range of choices about how to reform the German legal system. One of their first steps was to insist on a formalistic, "plain meaning" approach to law.
Cass R. Sunstein, "Must Formalism Be Defended Empirically?," 66 U Chi. L. Rev. 636, 662-66 (1999) (quoting 72 Entscheidungen des Reichsgerichts in Strafsachen 9 (1939), translated in Ingo Müller, Hitler's Justice: The Courts of the Third Reich at 101 (1991)).

Australia[edit]

Textualism was influential in Australia, and was particularly prominent in the interpretative approach of Sir Garfield Barwick. Amendments to the Acts Interpretation Act 1901 have rejected key elements of textualism, stating that statements made in the Second Reading speech by Ministers introducing an Act may be used in the interpretation of that act.

See also[edit]

References[edit]

  1. ^ Easterbrook, Frank H. (1988). "The Role of Original Intent in Statutory Construction". Harv. J.L. & Pub. Pol'y 11: 59 [p. 65]. 
  2. ^ Holmes (1899). "The Theory of Legal Interpretation". Harv. L. Rev. 12 (6): 417. JSTOR 1321531. 
  3. ^ Antonin Scalia, A Matter of Interpretation 23 (1997).
  4. ^ Scalia, Antonin (2010). "Textualism and the Constitution". In Bruce Miroff, Raymond Seidelman, Todd Swanstrom. Debating Democracy: A Reader in American Politics (Seventh Edition ed.). Boston, MA: Wadsworth Cengage Learning. pp. 288–294. ISBN 978-0-495-91347-4. 
  5. ^ 17 Oxford English Dictionary 854 (2d ed. 1989)
  6. ^ Jackson wrote that he preferred to "give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable, practical implications, instead of the rigidity dictated by a doctrinaire textualism." 343 U.S. at 640 (Jackson, J., concurring). Jackson's use of the term should be approached with caution, however, as what he had in mind in criticizing textualism was not the textualism known today.

Further reading[edit]