The Theoretical Bankruptcy of Textualism
13 Pages Posted: 21 Feb 2019
Date Written: February 13, 2019
This Essay contends that textualist interpretation – by which it means the search for the most likely public meaning of the words of a statute – in inconsistent with Congress’s responsibility for the substance of the law that it enacts. The textualist assertion to the contrary, that it is the text of the statute that is voted into law, fails to comprehend that the language of the statute is merely a means by which the legislature communicates what it intends the law to be. Therefore, this Essay responds to the textualist belief that the text of the statute is the reification of the law by arguing that the law should be what the legislators who voted for it understood the words of the statute to mean. This Essay further explains why it is not reasonable, or even possible, to expect legislators to determine the meaning of the words they enact using the tools of textualist judges. Hence, it argues that textualists cannot rely on the fact that words have an objective best meaning of which the legislature should be aware to support their contention that the law should be the most likely public meaning of the statutory text. The Essay then concludes by considering some implications that the theoretical bankruptcy of textualism should have for judicial statutory interpretation.
Keywords: textualism, Congressional responsibility, inconsistency, statutory interpretation
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