27 Pages Posted: 28 Oct 2008 Last revised: 16 Jun 2009
Date Written: June 15, 2009
In his essay A Matter of Interpretation, Justice Scalia draws a distinction between "reasonable" textualism and strict constructionism. However, Scalia does not precisely explain the distinction, and instead offers the interpretive problem of 18 U.S.C. Sec. 924(c) (prohibiting the use of a gun during and in relation to drug trafficking crimes) to elucidate the difference in approaches.
Judging from this example, it would appear that Scalia's "reasonable" textualism differs from "strict constructionist" textualism in two respects. First, strict constructionism's unit of analysis is the single word; it looks to the denotation of individual words and then constructs meaning from those words using the rules of grammar and textual canons of construction. Scalia's textualism, on the other hand, recognizes not only words, but phrases, clauses, and sentences as indivisible units of meaning. Second, strict constructionism refuses to acknowledge literary devices such as the idiom. Scalia's textualism, on the other hand, recognizes such literary devices in statutory text.
Recognizing these subtle differences in approach sheds light on why textualist judges occasionally come to different conclusions using ostensibly similar methods. Such differences in conclusion do not reflect empirical disagreements, but instead reflect subtle theoretical differences.
Keywords: Jurisprudence, Statutory Interpretation, Textualism, Strict Constructionism
Suggested Citation: Suggested Citation
Jaffe, Peter, Varieties of Textualism: Unit of Analysis and Idiom in the Interpretation of 18 U.S.C. Sec. 924(c) (June 15, 2009). Georgetown Journal of Law & Public Policy, Vol. 7, p. 305, 2009. Available at SSRN: https://ssrn.com/abstract=1288833