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08/10/2020

Jeffrey Goldsworthy: Legislative Intentions in Antonin Scalia’s and Bryan Garner’s Textualism
Michael Ramsey

Jeffrey Denys Goldsworthy (Monash University - Faculty of Law) has posted Legislative Intentions in Antonin Scalia’s and Bryan Garner’s Textualism (Connecticut Law Review, forthcoming) (23 pages) on SSRN.  Here is the abstract: 

In their book Reading Law (2012), the late Justice Antonin Scalia and his co-author Bryan Garner advocate “pure textualism”. But they reject “hyperliteralism”, which ignores context, including statutory purpose, and cannot accommodate implications. Their textualism is motivated partly by normative concerns about judicial lawmaking and the rule of law, and partly by their denial that legislatures can have any intentions other than to enact particular texts. They call for “further uses of intent in questions of statutory interpretation [to] be abandoned.”

I argue that their denial that legislatures can have any intentions other than to enact texts would, if rigorously adhered to, render their version of textualism unviable. It is inconsistent with context and purpose being used to (a) dispel ambiguities, (b) correct scrivener’s errors, (c) reveal presumptions or background assumptions that qualify literal textual meanings, (d) reveal most kinds of implicit and implied content, and (e) resolve conflicts between the interpretive canons. It would entail hyperliteralism.

That is no doubt why they do not rigorously adhere to that denial. To the contrary, in accepting that context and purpose can be used to do all these things, they frequently rely on legislatures having intentions in addition to merely enacting statutory texts. These include: (a) intentions that statutory language has particular meanings, (b) intentions that those meanings communicate particular norms, and (c) intentions (called purposes) that those norms should achieve particular objectives.

Despite their theoretical dismissal of substantive legislative intentions as non-existent, their actual interpretive practice confirms the intentionalist thesis that sensible interpretation of enacted laws necessarily presupposes the existence of such intentions, and endeavours to reveal and clarify them.

This paper will appear in a Festschrift in honour of Professor Richard Kay, in (2020) 52 Connecticut Law Review.