Textualism's Theoretical Bankruptcy and Its Implications for Statutory Interpretation

Abstract

Textualism’s possible theoretical justifications cannot sustain a preferred position for the inquiry into the best objective meaning of a statutory provision as the mechanism for statutory interpretation. In fact, careful analysis of Textualist’s proffered theoretical justifications for this approach to statutory interpretation is essentially bankrupt. When subjective legislative intent, as defined in this Article, exists and is discernible by compelling evidence, Article I of the Constitution requires that courts interpret statutes in accordance with that intent. Even when such intent is not discernible, textualism’s impoverished theoretical foundation counsels against resort to the textualist inquiry as the sole legitimate mechanism for statutory interpretation. For this reason, although this Article does not deny much of textualism’s critique of nontextualist judicial practices of statutory interpretation, it counsels that courts should not simply presume the propriety of the textualist mechanism. Rather, courts should consider whether, for any interpretative issue, textualist critiques render other mechanisms of interpretation sufficiently problematic that courts should resort to textualism as the best evidence of the most likely meaning that a legislator would give to statutory text. But courts should also consider whether for a particular statutory interpretive issue, such other mechanisms are likely to result in interpretations that better serve the public interest in light of current societal values, and apply such non-textualist mechanisms in instances where they are likely to lead to superior legislative outcomes.

Keywords: Legislation, Statutory Interpretation, Separation of Powers

JEL Classification: K10, K40