Textual Gerrymandering: The Eclipse of Republican Government in an Era of Statutory Populism

77 Pages Posted: 23 Mar 2021

See all articles by Victoria Nourse

Victoria Nourse

Georgetown University Law Center

William N. Eskridge

Yale University - Law School

Date Written: March 22, 2021

Abstract

We have entered the era of a fracturing high textualism, illustrated by the three warring original public meaning opinions in the blockbuster sexual orientation case, Bostock v. Clayton County. This paper provides conceptual tools that allow lawyers and students to understand the deep analytical problems faced and created by the new textualism advanced by Justice Scalia and his heirs. The key is to think about choice of text—why one piece of text rather than another—and choice of context—what materials are relevant to confirm or clarify textual meaning. We apply these concepts to evaluate the new textualism’s asserted neutrality, predictability, and objectivity in its canonical cases, as well as in Bostock and other recent textual debates. We find that textual gerrymandering–suppressing some relevant texts while picking apart others, as well as cherry-picking context—was pervasive. Texts and contexts are chosen to achieve particular results, without any law-based justification. One of the points of this paper is to show that, by adopting the seemingly benign “we are all textualists too” position, both liberals and conservatives have avoided the key analytic questions and have contributed to the marginalization of the nation’s premier representative body, namely, Congress. Today, the Supreme Court asks how “ordinary” populist readers interpret language (the consumer economy of statutory interpretation) but reject the production economy (the legislative authors’ meaning). Without returning to discredited searches for ephemeral “legislative intent,” we propose a new focus on legislative evidence of meaning. In the spirit of Dean Manning’s suggestion that purposivists have improved their approach by imposing text-based discipline, textualists can improve their approach to choice of text and choice of context by imposing the discipline of what we call “republican evidence”—evidence of how the legislative authors explained the statute to ordinary readers. A republic is defined by law based upon the people’s representatives; hence the name for our theory: “republican evidence.”

Keywords: interpretation constitution statutory

Suggested Citation

Nourse, Victoria and Eskridge, William Nichol, Textual Gerrymandering: The Eclipse of Republican Government in an Era of Statutory Populism (March 22, 2021). NYU Law Review , Yale Law School, Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3809925

Victoria Nourse (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

William Nichol Eskridge

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-9056 (Phone)

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