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09/08/2021

Lawrence Solum on Textualism [Update with Further Thoughts]
Michael Ramsey

At Larry Solum's Legal Theory Blog, an updated entry in the Legal Theory Lexicon: Textualism.  From the introduction:

One of the most important topics in legal theory is “legal interpretation,” which deals with the derivation of meaning from legal texts. Of course, legal interpretation is a very large topic, with several different dimensions and approaches. This post will focus on “textualism,” and provide some introductory ideas about interpretive theory in general. ... 

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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.

The distinction between textualism and what Professor Solum calls "Literal meaning" seems particularly important, and it's often ignored by critics of textualism (and sometimes even proponents).  Textualism embraces context as a necessary way to understand text.  See my discussion here (in Part II).

FURTHER THOUGHTS:  On reflection, I think I don't agree with Professor Solum's description of "plain meaning,"  As I understand the above passage (though I may be misreading it), he's saying that the "plain meaning" includes "contextual disambiguation or precisification." (I'll just call it context).  If that's so, I don't see what the word "plain" adds.  It's just the meaning of the text, as understood in context.

Instead, I think of "plain meaning" as what he calls "literal meaning."  It's what appears on the face of the text, before considering context. Sometimes it's sufficiently clear that it settles the meaning.  Sometimes it isn't, so textualists turn to context to clarify otherwise unclear text (and to be sure that what appears to be the literal meaning is in fact the true meaning).

Put this way, I would say that textualists do not limit themselves to the "plain meaning" because they do look at context.  Sometimes the text's meaning isn't plain, but is still discernible using context.