The Volokh Conspiracy
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A few months ago I linked to a lecture called "Beyond Textualism?" that I gave at Harvard Law School in the "Scalia Lecture" series—on what the core insight of textualism is and how we might extend it even in cases where the text itself is silent. I now have a written version of those remarks available on SSRN (they will be forthcoming in the Harvard Journal of Law and Public Policy).
Last fall, I was at another law school, visiting with a friend, a co-author. So of course, we started talking about legal interpretation. I went into his office, he shut the door, and then the first thing he asked me was, "Do you think textualism has sort of played itself out?" This lecture is about the answer to that question.
In general, the textualist revolution was correct and salutary. But it is getting to be time to solve some problems where standard textualist teaching might lead us astray. If we think of textualism, or the phrase, "the plain text," as just mantras—prayers to ward off the demons of bad judging—we will not find salvation. We need to understand why textualism is right. If we do, then it may mean that sometimes in some cases our analysis will have to move a little bit beyond the text.
What do I mean?
The key insights of textualism are really two things: positivism and formalism. The insight of textualism is positivism in the sense that judges are supposed to follow external sources of law rather than treat jurisdiction as necessarily giving them the power to make decisions in their own discretion. When it comes to the question: What does the statute mean? or what should we do in this case where the agency or somebody else's behavior is governed by statute? the key question judges are supposed to be asking is, what did the law say they should do? The answer comes from law outside the judge.
The argument for textualism as opposed to policymaking, for text over policy, comes from this kind of positivism. It is not the judge's job to decide what is the best thing, all things considered, or what would make our legal order better rather than worse, all things considered. It is the judge's job to ask what something else says about those things.
The other key insight of textualism is formalism, in the sense that it recognizes that the rule does not always match the reasons for the rule. Sometimes rules go beyond their reasons; a rule can be overbroad compared to the reasons for enacting it. And sometimes rules are underbroad; a rule cannot quite do all the things that you might want to do given the reasons for enacting the rule. Textualism recognizes that when the judge enforces the law, the law's rule might sometimes be different from what the people who enacted the law would have wanted had they thought about the situation.
This is the argument for textualism as opposed to intentionalism. The reason to follow text rather than the imagined or even the known intent of the people who enacted the law, comes from this kind of formalism. Judges, when they're enforcing a rule that comes from outside themselves, might have to enforce a rule that isn't exactly the same as the reasons for the rule.
These two things work together. Textualism reflects an insight—central to the structure of our government and central to the fabric of our law as it has evolved in our legal system—that the job of an interpreter (let's call her a "judge") is usually to enforce rules that come from someplace else, not to make the rules herself and not to imagine rules that were never actually made law anywhere.
Those insights are the reasons for textualism, but those insights don't necessarily stop at textualism. If we are going to continue to honor the basic structure of our government and of our own legal order, we are sometimes going to need to think more deeply about the jurisprudential insights that underlie textualism. The problem is that the text itself, even the text supplemented by something like the original meaning of the text, is incomplete. It gives incomplete or misleading answers to important questions about the law. It needs to be supplemented with attention to our entire legal framework because our legal system relies not just on written texts but also on an unwritten law. We need to supplement textualism with this unwritten law, law that governs both interpretation and background principles against which interpretation takes place.
It discusses examples like the "major questions doctrine" and other substantive canons, Erie RR v. Tompkins and the common law more generally, and the original meaning of the Fourteenth Amendment.
Now before I gave this lecture, Dean Manning confessed to me that he was very nervous about it. Frankly, I am too. I am sure that this lecture will be misunderstood, miscited, and misquoted by people who did not hear or read it and who miss the basic point I am trying to make here. I won't give them any ideas, but you can probably imagine.
So let me try to state it clearly one more time before we finish.
Textualism, to a first approximation, is central to the rule of law.
But to a second approximation, we sometimes need to use other legal rules, unwritten law, and doing so is completely consistent with the reasons that we use legal texts.
- We need unwritten law as a backdrop against which to read legal texts.
- We need unwritten law to understand the common law system—the real common law system, not the system of judge-made law that has usurped it.
- We need unwritten law because our legal texts sometimes point us toward it. We need to know how to accept the invitation.
Admitting these things has risks, but denying these things has risks too.
- Denying them risks sending us in statutory interpretation circles, unable to explain how we can avoid being literalists and also avoid being opportunists.
- Denying them risks leading people to abandon textualism, and positivism, and formalism, and even the rule of law itself because they mistakenly think that we have no other way to make sense of the central legal traditions such as natural rights.
- And it risks leading us to close our eyes to the meaning of the constitutional text itself, because sometimes the text requires us to engage with unwritten law. The text requires us to go beyond the text.
If we do not teach our students how to do these things, if we do not revive the more fundamental pre-realist tenets of our legal tradition, then our students will be misled into thinking that the only choices are the plain text and judicial policymaking. That is not true, and I will take my chances in saying so.
Finally, later today I'll also be participating in a Federalist Society webinar on "The Future of Textualism?" with a great crew—Professors Nick Bagley, Chris Walker, and Emily Bremer, moderated by Judge Greg Katsas—where I'll be talking about these themes some more.