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01/24/2018

Lawrence Solum on Textualism
Michael Ramsey

At Legal Theory Blog, Lawrence Solum: Legal Theory Lexicon: Textualism.  From the post's basic description of textualism:

The Plain Meaning of the Text

Let’s begin with a basic question: what do we mean when we say “the plain meaning of the text.” A really good answer to that question would require us to develop a theory of meaning in general, but we must avoid that enterprise--at least for the purposes of this post. At one level, the idea of plain meaning is pretty simple. The plain meaning of a legal text is the meaning that would be understood by regular folks who were competent speakers of the language and who knew that they were reading a statute (or court decision, etc.).

But this preliminary formulation is too simple. Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type. 

What "Plain Meaning" Is Not

Another way to understand plain meaning is to contrast this idea with others.  Here are some:

  • Literal Meaning.  The literal meaning of a text is provided by its semantic content alone, with no consideration of context.  Literal meaning is sparser than plain meaning, because the conventional semantic meaning of many words and phrases is very sparse, with contextual disambiguation or precisification enriching the plain meaning.
  • Purposive Meaning.  Sometimes we use the word "meaning" to represent the purpose for which a text was written.  Purposive interpretation is a rival of textualism.
  • Reasonable Meaning:  The plain meaning of a text may not be the best meaning (from the perspective of some policy goal or normative theory).  The plain meaning of a text may not be the "reasonable"or "desirable" meaning.

And later on, from the part titled "The Case for Textualism":

If we view textualism as a semantic theory of interpretation, the question we need to ask is whether the plain meaning is the linguistic meaning of the text.  There is no general answer to this question--it all depends on the nature of the text.  Texts that are directed to a particular audience on a particular occasion may have speaker's meaning.  But in general legal contexts that are directed to the public at large will have sentence meaning--that is, their meaning will be a function of the conventional semantic meaning of the text and not the intentions of a particular speaker.

But if we view textualism as a normative theory of interpretation, we need to ask to ask why interpreters of legal texts should aim for interpretations that yield that “plain meaning of the text.” The usual answer to this question is that plain meaning best serves the rule of law values of publicity, predictability, certainty, and stability of the law. One of the important rule of law values is publicity: the law should be accessible to ordinary citizens. Ordinary citizens are likely to interpret statutes to have their plain meaning, because ordinary folks rarely have the training to understand legislative history and even if they did have such training, it would simply be too costly to analyze the legislative history of statutes to determine their meaning.

A minor quibble: the foregoing paragraphs, and some other parts of the post, seem to assume that textualism is inconsistent with the use of legislative history.  I'm not sure all textualists would agree, and even if they did agree they might not think the reason was that legislative history is inaccessible to ordinary people.  Justice Scalia famously opposed legislative history in analyzing statutes, but his objection was principally that modern legislative history was easily manipulable and was not drafted by or often even read by members of Congress.  Scalia did at times use something like legislative history -- the Convention debates -- in interpreting the Constitution.  (See my discussion here).  And other textualists might say that textualism does not require as rigid approach as Scalia promoted for statutes.  As with the Convention debates and the Constitution, legislative history used correctly may indicate how the drafters understood language, which in turn may resolve ambiguities or otherwise inform the interpreter's understanding of the words of the text.  My view of textualism is not so much that it limits the evidence one may consult, but that it limits the purpose for which one consults it.  Textualism, I would say, requires an interpretation that gives meaning to particular words of a legal enactment, rather than finding a meaning in the spirit, purpose, structure, intent, etc., of the enactment irrespective of its actual words.  (Some further thoughts here, on "historical textualism").