Beyond Textualism

Abstract

This paper was the basis for my Fordham University Natural Law Colloquium lecture in September 2019.

More than 20 years ago, Justice Scalia wrote of “the great degree of confusion that prevails” in the field of statutory interpretation. Today, Scalia’s textualism is ascendant. Over the past three decades, textualism has expanded its influence both in both the courts and in the scholarly literature. (I’m using the term textualism to encompass textualism in both statutory interpretation and constitutional interpretation. The latter is also called public meaning originalism.)

In the first part of my talk, I’ll show that despite the confidence with which it is propounded, textualism is deeply confused.

In the second part of my talk, I suggest a new way of thinking about legal interpretation from the ground up. Behind the familiar question of what method of interpretation is the right one, lies a more fundamental question: what does legal interpretation, by its nature, seek? I will argue that widely shared premises dictate a straightforward answer – roughly speaking, legal interpretation seeks the contribution that statutory and constitutional provisions make to the content of the law.

Once we have clarified this basic point, the field of legal interpretation looks very different. To illustrate the way in which the field is reconfigured, I will focus on the question of whether the kind of arguments from democracy, fairness, and the like that theorists offer are even the right kind of arguments to defend methods of interpretation.

I will briefly canvas a few of the most influential theories of how the content of the law is determined and show that they do not support the kinds of arguments that textualists, intentionalists, and other theorists typically make.

It turns out that the moral impact theory of law makes sense of the kinds of arguments from democracy that theorists of legal interpretation make. So there is a sense in which theorists of legal interpretation implicitly presuppose something like the moral impact theory.

Finally, I will draw some conclusions about the implications of the moral impact theory for legal interpretation. For example, once legal interpretation is reconfigured in the way that I have suggested, how would one go about defending something in the neighborhood of textualism?

Keywords: legal interpretation, textualism, methods of interpretation, intentionalism