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"Textualism" Debate on PENNumbra (plus an essay by Greenberg)

By Larry Solum

<span style="color: #0000bf; "><strong>On PENNumbra, the online companion to the University of Pennsylvania Law Review, there is a marvelous debate, kicked off by </strong></span><a href="http://www.pennumbra.com/issues/article.php?aid=238"><span style="color: #0000bf; "><strong>The Inexorable Radicalization of Textualism</strong></span></a><span style="color: #0000bf; "><strong> by Jonathan R. Siegel. Here is a taste:</strong></span><ul> For decades, scholars have divided over how best to interpret statutes, particularly when statutory text pulls in one direction and intent or purpose in another. On one side of the resulting "interpretation wars" stand the textualists, who believe that the goal of statutory interpretation is to identify the objective meaning of statutory text without regard to what any legislator intended that text to mean. Arrayed against them are the intentionalists, who believe that the goal is for courts to implement the intent of the legislature. Also taking the field are the purposivists, who believe that the goal is to identify the purpose of a statute and to interpret it to carry out that purpose. The battles between these methods have raged over decades and have spawned innumerable scholarly commentaries and judicial clashes. <br /><br /> The latest move in the interpretation wars, however, is to declare something of a truce. Textualism, intentionalism, and purposivism are either not all that different or at least not different in the way people usually think. That is the message in recent articles representing a new wave of scholarship that attempts to reach an accommodation among competing interpretive methods.</ul> <strong><span style="color: #0000bf; "> And replies from Lawrence Solan and Ilya Somin. Here are excerpts. </span></strong><a href="http://www.pennumbra.com/responses/response.php?rid=87"><strong><span style="color: #0000bf; ">Opportunistic Textualism</span></strong></a><strong><span style="color: #0000bf; "> by Lawrence M. Solan:</span></strong><ul> In his interesting and provocative article, The Inexorable Radicalization of Textualism, Jonathan Siegel argues that the textualist approach to statutory interpretation has gone off the deep end. Driven largely by Justice Scalia's judicial philosophy, textualism instructs interpreters of statutes to focus on the language of the statute and to reject certain other often-used interpretive tools, especially the legislative history that led to the enactment, and the purpose of the legislation. The former is illegitimate because it is undemocratic to aggrandize the unenacted words of committees or individual members who happen to have spoken up; the latter is illegitimate because the unenacted purpose of a statute cannot serve as a suitable replacement for the law itself, whose language is the product of a constitutionally mandated process. On the other hand, such clues as judicially crafted canons of construction, the stare decisis effect of earlier decisions interpreting the same or related language, coherence in interpretation (both within the provision and more broadly within the code), and certain background social history are still fair game.</ul> <span style="color: #0000bf; "><strong> And </strong></span><a href="http://www.pennumbra.com/responses/response.php?rid=88"><span style="color: #0000bf; "><strong>Is Textualism Doomed?</strong></span></a><span style="color: #0000bf; "><strong> by Ilya Somin:</strong></span><ul> In Is Textualism Doomed?, Professor Ilya Somin counters Professor Siegel's argument that textualism is ultimately doomed to irrelevance because its "inexorable radicalization . . . will cause it to lose the interpretation wars." Somin contends that Siegel's normative critique of textualism and positive prediction about its future are overdrawn. In Part I, Professor Somin shows that adherence to text does not inevitably lead to absurd and extreme results. In Part II, Somin claims that Siegel has understated the importance of textual ambiguity. He argues that when faced with an ambiguous text, resorting to extrinsic evidence of meaning is entirely consistent with textualist premises and may sometimes even be required by them. In Part III, Somin finds that textualism is here to stay, and will not "work itself pure" as Siegel has argued. Somin concludes by reasoning that because federal judges are not as interested in "grand theories of interpretation" and methodological consistency as academics are, they will not take textualism to its logical extreme.</ul> <span style="color: #0000bf; "><strong> Highly recommended, but <span style="color: #ff0000; ">it is a shame that none of the contributions to this debate deal with</span> T</strong></span><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1103569"><span style="color: #0000bf; "><strong>he Standard Picture and its Discontents</strong></span></a><span style="color: #0000bf; "><strong> <span style="color: #ff0000; ">b</span><span style="color: #ff007f; "><span style="color: #ff0000; ">y Mark Greenberg</span></span>, which contains an important and illuminating philosophical analysis of what Siegel identified as the core of textualism. Here is the abstract of Greenberg's paper (available on SSRN):</strong></span><ul> In this paper, I argue that there is a picture of how law works that most legal theorists are implicitly committed to and take to be common ground. This Standard Picture (SP, for short) is generally unacknowledged and unargued for. SP leads to a characteristic set of concerns and problems and yields a distinctive way of thinking about how law is supposed to operate. I suggest that the issue of whether SP is correct is a fundamental one for the philosophy of law, more basic, for example, than the issue that divides legal positivists and anti-positivists, at least as the latter issue is ordinarily understood. <br /><br /> The goals of the paper are fourfold: 1) to identify and articulate in some detail the Standard Picture; 2) to show that SP is widely held and has important consequences for other debates in the philosophy of law; 3) to show that SP leads to a serious theoretical problem; 4) to sketch an alternative picture that promises to avoid this problem. I emphasize the modesty of these goals in one respect. I make no claim to refute SP or to fully develop and defend an alternative picture.</ul> <span style="color: #0000bf; "><strong>In particular, Greenberg notes:</strong></span><ul> The standard picture holds that it is the linguistic content of an authoritative pronouncement that becomes a legal norm. Call this the Linguistic Content Thesis.<br /><br />The Linguistic Content Thesis is needed to respect the spirit of the command paradigm, as articulated by the Explanatory Directness Thesis. The very point of the command paradigm is that the subjects are obligated to do what Rex tells them to do because he tells them to do it. That is its beautiful simplicity and also, as we'll see, the source of its difficulties. There is of course room for debate about which aspect or part of linguistic content-what Rex said, what he meant, etc.-best captures what he commanded. But if we allow that Rex's command could create an obligation whose content is not (an aspect of) the linguistic content of the command, we have abandoned the command paradigm's simple explanation for the new obligation-'because Rex said so.' The command paradigm has no explanation of how Rex's command creates an obligation with a content that is not what Rex said or meant. (We could of course call the content of the new obligation, which is not something that Rex said or meant, 'the content of Rex's command,' but that would be to preserve the command model in name only.)<br /><br /> We can spell the point out in terms of the Explanatory Directness Thesis. If the content of the legal norm created by an authoritative pronouncement is not the linguistic content of the pronouncement, the explanation of the norm's legal validity cannot be simply that it was said or meant (since, by hypothesis, it wasn't). Again, we could call the content of a resulting norm the 'legal content' or 'legal meaning' of the pronouncement, but that would not be to explain the legal validity of the norm, but merely to give a name to what would need to be explained. In the interest of brevity, in the rest of the paper, I'll often write simply 'content' rather than 'linguistic content.'</ul> <span style="color: #0000bf; "><strong>I strongly recommend Greenberg's essay.  <span style="color: #ff0000; ">Download all four essays while they are hot!</span></strong></span>

Full post as published by Legal Theory Blog on April 06, 2010 (boomark / email).