Caleb E. Nelson

What Is Textualism?

PUBLISHER
Virginia Law Review
DATE
2005
 

UVA Law Faculty Affiliations

Abstract

In discussions of statutory interpretation, people often suggest that textualists and intentionalists have fundamentally different goals: intentionalists try to identify the subjective intent of the enacting legislature, while textualists care only about the objective meaning of the statutory text. This distinction, however, is far less helpful than the rhetoric on both sides suggests. To begin with, the distinction itself is exaggerated; judges whom we think of as textualists construct their sense of objective meaning from what the evidence that they are willing to consider tells them about the subjective intent of the enacting legislature. Many textualists do impose more restrictions than the typical intentionalist on the evidence of intent that they are willing to consider, but those restrictions need not reflect any fundamental disagreement about the goals of interpretation. In any event, whatever disagreements may exist on this score do not account for the most significant differences between textualism and intentionalism. Thus, even when there is no useful legislative history on some question of interpretation (and hence no intrinsic reason for the objective meaning sought by textualists to diverge from the subjective intent sought by intentionalists), one can still expect to observe systematic differences between the results reached by textualists and the results reached by intentionalists.

For people seeking to describe how textualism and intentionalism really differ, the familiar distinction between rules and standards is a more productive starting point than the distinction between objective meaning and subjective intent. Within certain constraints, all mainstream interpreters seek the meaning intended by the enacting legislature. As a methodological matter, however, textualists seem to believe that a relatively rule-based approach to interpretation is likely to bring judges closer to that goal than the more holistic techniques favored by intentionalists. As a normative matter, moreover, textualists are more likely than intentionalists to resolve uncertainties in favor of ruleness; when the meaning intended by the enacting legislature is concededly unclear, it is unusual for intentionalists to settle upon a more rule-like interpretation than textualists. Without regard to any purported disagreement about the goals of interpretation, these twin differences are capable of generating most of the divide that we currently observe.

Citation

Caleb E. Nelson, What Is Textualism?, 91 Virginia Law Review 347-418 (2005).
 

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