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09/10/2014

Neil Buchanan on Textualism
Michael Ramsey

At Dorf on Law, Neil Buchanan: Hate Crimes, Chemical Weapons, and the Internal Revenue Code. Here is an excerpt: 

In his post here yesterday, Professor Dorf raised an interesting and important question about statutory interpretation, suggesting that perhaps current practices are "unduly influenced by textualism."  Discussing the Sixth Circuit's opinion in United States v. Miller, a hate crimes case, and Bond v. United States, a 2014 Supreme Court case interpreting a chemical weapons law, Professor Dorf suggested that even apparently clear statutory language can still be ambiguous in ways that might change the outcomes of cases.

The point is subtle, but exceedingly important.  Conventional wisdom, as Professor Dorf describes it, requires a two-part inquiry, in which "one first determines whether the text is clear, and only if the answer is no does one look to background purposes to determine the best interpretation."  This Chevron-style approach essentially says that apparent statutory purpose is always trumped by clear statutory language, no matter how clearly the two might diverge.  Professor Dorf's suggestion, with which I agree, is that knowing the purposes of a statute "can create ambiguity where the words alone do not appear to contain any."  That is, there is nothing wrong with the two-step approach, but we need to be more complete about our inquiry into what even apparently clear words of a statute could mean.

This is a very impressive post, of which the excerpt is only a small taste, but there really isn't anyway to capture it without reading all of it.  I am not sure, though, that he is saying anything textualists would disagree with.

Professor Dorf's post, linked above, is also well worth reading.