Textualism

Textualism is a formalist theory of statutory interpretation which holds that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or substantive questions of the justice and rectitude of the law. It should not be confused with the "plain meaning" approach, a simpler theory first used prominently in the early Burger Court in cases such as "Tennessee Valley Authority v. Hill", which looked to the dictionary definitions of words, without reference to common public understanding or context.

cquote2|quotetext=Textualist judges have contended, with much practical impact, that courts should not treat committee reports or sponsors' statements as authoritative evidence of legislative intent. These judges base their resistance to that interpretive practice on two major premises: first, that a 535-member legislature has no "genuine" collective intent concerning the proper resolution of statutory ambiguity (and that, even if it did, there would be no reliable basis for equating the views of a committee or sponsor with the "intent" of Congress as a whole); second, that giving weight to legislative history offends the constitutionally mandated process of bicameralism and presentment.
personquoted=John F. Manning|quotesource=Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 1997

The textualist will "look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words." [Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol'y 59, 65 (1988).] The textualist thus does not give weight to legislative history materials when attempting to ascertain the meaning of a text.

Textualism is often associated with originalism and strict constructionism, and is advocated by Supreme Court Justices such as Hugo Black and Antonin Scalia, who in his Tanner Lectures at Princeton decried that " [i] t is the law that governs, not the intent of the lawgiver."

Methods

Textualism looks to the ordinary meaning of the language of the text, but it looks at the ordinary meaning of the "text", not merely the possible range of meaning of each of its constituent "words" (see Noscitur a sociis)::The statute excludes only merchandise "of foreign manufacture," which the majority says might mean "manufactured by a foreigner" rather than "manufactured in a foreign country." I think not. Words, like syllables, acquire meaning not in isolation but within their context. While looking up the separate word "foreign" in a dictionary might produce the reading the majority suggests, that approach would also interpret the phrase "I have a foreign object in my eye" as referring, perhaps, to something from Italy. The phrase "of foreign manufacture" is a common usage, well understood to mean "manufactured abroad." "K-Mart v. Cartier", [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=486&invol=281#318 486 U.S. 281, 319] (1988) (Scalia, J., concurring in part and dissenting in part).

Justice Scalia has also written::The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated-a compatibility which, by a benign fiction, we assume Congress always has in mind. I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a result different from the one that these factors suggest.

Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, J., concurring).

Textualists do not, generally, accept the authority of the Courts to "refine" statutes::Even if we were to assume, however, contrary to all reason, that every constitutional claim is "ipso facto" more worthy, and every statutory claim less worthy, of judicial review, there would be no basis for writing that preference into a statute that makes no distinction between the two. We have rejected such judicial rewriting of legislation even in the more appealing situation where particular applications of a statute are not merely less desirable but in fact raise "grave constitutional doubts." That, we have said, only permits us to adopt one rather than another permissible reading of the statute, but not, by altering its terms, "to ignore the legislative will in order to avoid constitutional adjudication." "Webster v. Doe", [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=486&invol=592#619 486 U.S. 592, 619] (Scalia, J., dissenting).

Textualists acknowledge the interpretive doctrine of "lapsus linguae" (slip of the tongue), also called "scrivener's error." This doctrine accounts for the situation when on the very face of the statute, it is apparent that there is a mistake of expression. (See, e.g., "United States v. X-Citement Video", [http://straylight.law.cornell.edu/supct/html/93-723.ZD.html 513 U.S. 64] ) (1994) (Scalia, J., dissenting) ("I have been willing, in the case of civil statutes, to acknowledge a doctrine of 'scrivener's error' that permits a court to give an unusual (though not unheard of) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result") and even break it (see, e.g., "Green v. Bock Laundry Machine Co.", [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=490&invol=504#f35 490 U.S. 504, 527] ) (1989) (Scalia, J., concurring) ("We are confronted here with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional, result. Our task is to give some alternative meaning to the word "defendant" in Federal Rule of Evidence 609(a)(1) that avoids this consequence; and then to determine whether Rule 609(a)(1) excludes the operation of Federal Rule of Evidence 403.") Other textualists might reach alternative conclusions. Scalia's apparent inconsistency is perhaps explained by his choice to sometimes adhere to the more venerable judicial canons of interpretation, such as the constitutional avoidance canon.

The word "textualism” was first used by Mark Pattisonin in 1863 to criticize Puritan theology, according to the Oxford English Dictionary (17 Oxford English Dictionary 854 (2d ed. 1989)). Justice Robert Jackson first used the word "textualism" in a Supreme Court opinion a century later in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 640 (1952) (Jackson, J., concurring).

In his article, "Must Formalism Be Defended Empirically," Professor Cass Sunstein begins by stating::In the Nazi period, German judges rejected formalism. They did not rely on the ordinary or original meaning of legal texts. On the contrary, they thought that statutes should be construed in accordance with the spirit of the age, defined by reference to the Nazi regime. They thought that courts could carry out their task "only if they do not remain glued to the letter of the law, but rather penetrate its inner core in their interpretations and do their part to see that the aims of the lawmaker are realized." . . . .After the war, the Allied forces faced a range of choices about how to reform the German legal system. One of their first steps was to insist on a formalistic, "plain meaning" approach to law.Cass R. Sunstein, Must Formalism Be Defended Empirically, 66 U Chi. L. Rev. 636, 662-66 (1999) (quoting 72 Entscheidungen des Reichsgerichts in Strafsachen 9 (1939), translated in Ingo Müller, Hitler's Justice: The Courts of the Third Reich at 101 (1991)).

Australia

Textualism was long influential in Australia, and was particularly prominent in the interpretative approach of Sir Garfield Barwick. Amendments to the Acts Interpretation Act 1901 have rejected key elements of textualism, stating that statements made in the Second Reading speech by Ministers introducing an Act may be used in the interpretation of that act.

ee also

*Judicial activism

References

External links

* [http://legaltheorylexicon.blogspot.com/2004_04_01_legaltheorylexicon_archive.html#108169832522315548 Legal Theory Lexicon] on Textualism

Law Review Articles

*John F. Manning, "Textualism and Legislative Intent", 91 Va. L. Rev. 419 (2005)

*Caleb Nelson, "What is Textualism?", 91 Va. L. Rev. 347 (2005)

*John F. Manning, "Textualism and the Equity of the Statute", 101 Colum. L. Rev. 1 (2001)

*Antonin Scalia, "A Matter of Interpretation: Federal Courts and the Law" 35-36 (1997)

*Daniel A. Farber, "The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law", 45 Vand. L. Rev. 533 (1992)