Old-fashioned textualism is all about interpretation, not legislating from the bench
You’ve probably heard recently about the “Gorsuch brief”—a brief that makes closely analyzed textual arguments based on grammars and dictionaries—and about how progressive advocates are relying more and more on Scalia-style textualism. These subjects have been much in the news. You may also know that Justices Ruth Bader Ginsburg and Stephen G. Breyer typically analyze interpretive questions by focusing on four elements in this order: (1) text, (2) structure, (3) purpose and (4) legislative history. That technique was begun embryonically by Justice Robert H. Jackson and carried into mature development by Justice David Souter. As Justice Elena Kagan said famously a few years ago, “We’re all textualists now.”
While consequentialists think about ideal results (best policies for the future) and purposivists think about broad legislative purposes (what Congress had in mind), textualists consider the words actually adopted. As Justice Oliver Wendell Holmes declared in a 1930 opinion, “There is no warrant for seeking refined arguments to show that the statute does not mean what it says.”
Of course, this subject can be politically dangerous—especially when we’re talking about constitutional as opposed to statutory interpretation. So I’ll leave constitutional interpretation to the side and talk here about some fine points of statutory interpretation. Being pretty apolitical myself, I’ll try to refrain from policy arguments and hew to the text. In any question of interpretation, policy is bound to rear its head. But it’s always good to make a textual argument first.
This approach is old-fashioned. The conventional view has always been that to interpret is to do a finite number of things relating to understanding what words mean in their context. Some activities exceed its ambit: to expand, to twist, to contort, to stretch, to interpolate, to restrict, to bend, to make exceptions to, to ignore, to evade, to flout, to repeal, to nullify, to abrogate. Judges are often urged to engage in these activities, but they aren’t interpretation.
The 18th-century view, as expressed by the commentator John Raithby, was that “our laws ... have been framed ... by the suggestions of deliberative wisdom.” Although these laws may sometimes prove imperfect, “our judges ... are not at liberty to dispense with them, or to alter them.”
Another scholar of the period, Francis Sullivan, explained why he thought judges, “the dispensers of justice,” must “follow the strict letter of the positive laws; lest, under the pretense of explaining and extending them, the most valuable privileges of the people might be betrayed or rendered illusory.” In sum, departing from the enacted words is a stratagem that can be used for any possible political end.
It’s not political
So the ideal textualist is content-neutral, at least in theory. Justice Louis Brandeis warned that “we must be ever on our guard, lest we erect our prejudices into legal principles.”
If you feel I’m getting political here, I don’t mean to. We’re talking about statutes in a mainstream way. That’s why Chief Justice John Marshall wrote in an 1804 opinion that “a law is the best expositor of itself.” Courts can’t substitute their words for the legislature’s.
But what if the legislature is dysfunctional? A revered British commentator says that in the United Kingdom, Parliament “is in a state of acute malfunction, producing laws which are excessive in quantity and deficient in quality.” The same might be said of American legislatures, where scrutiny has been minimized on the pretext of a shortage of time. Some have suggested that if a legislature is unwilling or unable to give proper attention to legislation, a replacement ought to be invented. But what would take its place? We might wonder.
If courts constantly bail out the legislatures by amending statutes in the guise of interpreting them, the result is what some modern scholars call “legislative free-riding.” That is, courts are encouraged not to be firm or consistent with statutes if they know that the legislature routinely turns out unwise or slipshod statutes, and if they feel that there’s little hope for improvement. Most judges cannot take the legislature at its word if they believe that doing so works injustice after injustice, with no help in sight. The problem is real.
Questions of Age
Sound textualism involves a heavy dose of common sense as well as linguistic acuity. Let’s take a common example that illustrates the dangers of a blinkered, narrow textualism as opposed to one based on a “fair reading” of the words. The former view might find ambiguities where the latter will find none at all.
A curious class of cases involves minor victims of a specified age. We commonly say that a child is 10 years old until the 11th birthday, 11 until the 12th and so on. This idiomatic usage has occasionally spawned prosecutorial problems. For example, a California statute provided: “Any person 18 years of age or older who engages in oral copulation or sexual penetration ... with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life.” Does this wording include a victim who has passed her 10th birthday?
In a 2010 case before the California Court of Appeal, the victim was 10 years and 11 months. Finding the statute ambiguous, the court applied the rule of lenity, as some courts have done in such cases. But the California Supreme Court properly reversed by applying ordinary meaning, as most courts do in similar cases.
The state high court’s approach is consistent with fair-reading textualism. This dialogue, for example, is inconceivable among native speakers of English:
“How old are you?”
“Oh, it’s your birthday?”
Nobody thinks a 10-year-old is a 10-year-old for only one day. Likewise, if you’re asked your age on a government form, you would say “45” until your 46th birthday. Because there is no ambiguity, the rule of lenity doesn’t come into play. And a provision applicable to persons “45 to 55” includes those who have reached their 45th birthday and not reached their 56th.
One other aspect of textualism—a subset really, since it’s only a small part of what it means to take seriously the words of a legal instrument—is the fixed-meaning canon: the idea that words must be given the meaning they had when adopted. (Stay with me, please.) In a 1944 case, the Illinois Supreme Court declared: “Expediency, born of changing circumstances and conditions, will not alter the meaning of plain and ordinary language used in an ordinance. The words of an ordinance must be taken in the sense in which they were understood at the time the ordinance was enacted.”
Bugs Bunny’s Meaning
So, for example, a 1915 statute dealing with nimrods must be held in 2015 to be about hunters, not simpletons or nincompoops. The Bugs Bunny meaning of nimrod (in reference to Elmer Fudd) wasn’t known to the 1915 legislature, and the more modern meaning is irrelevant.
But is this really part of traditional interpretation? You bet. The influential Emmerich de Vattel, the Swiss author of The Law of Nations (1758)—a book that greatly influenced the Founding Fathers—wrote: “Languages vary incessantly, and the signification and force of words change with time. When an ancient act is to be interpreted, we should then know the common use of the terms, at the time when it was written.” And James Madison himself wrote: “What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.”
I’m cherry-picking quotations, assuredly, but you won’t really find nontextualist ideas expressed until the late 19th century, and not at all frequently until the mid-20th.
Remember, too, that interpretive approaches can be used for all kinds of purposes, not just beneficent ones. Nazi Germany enacted statutes that gave judges vast discretion to deal with the language. They were allowed to disregard the text if they ever thought it incomplete or ambiguous or “contrary to the sound sentiment of the people.” A comparative-law commentator, H.C. Gutteridge, commented that this German approach “had a very brief life and has now been discarded.”
Fortunately, that view has never held sway in the United States, where today we’ve swung more toward an extremely close reading of texts to discern meaning. Although some lawyers and judges will always care more about policy arguments, nobody can safely ignore grappling with textual arguments.
Bryan A. Garner is co-author, with the late Justice Antonin Scalia, of Reading Law: The Interpretation of Legal Texts (2012), which is now among the most widely cited books on statutory construction. Twitter: @BryanAGarner. This article was published in the April 2019 ABA Journal magazine with the title "It Means What It Says."