William Baude (University of Chicago Law School) has posted The 2023 Scalia Lecture: Beyond Textualism? (Harvard Journal of Law and Public Policy, Vol. 46, 2023) (16 pages) on SSRN. Here is the abstract:
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 found in unwritten law, and doing so is completely consistent with the reasons that we use legal texts.
Examples include "substantive" canons of interpretation, natural law, and the original meaning of the Fourteenth Amendment.
From a part of the lecture regarding the major questions doctrine (footnotes omitted):
Now, these are not just theoretical questions, and these are not just minor questions. As Justice Kagan alluded to above, last term, in West Virginia v. EPA, the Supreme Court “announce[d] the arrival” of the major questions doctrine — a new substantive canon that holds that “where [a] statute . . . confers authority upon an administrative agency” the scope of that authority “must be shaped, at least in some measure, by the nature of the question presented.” In particular, “there are extraordinary cases . . . in which the history and the breadth of the authority that the agency has asserted and the economic and political significance of that assertion provide a reason to hesitate before concluding that Congress meant to confer such authority.”
Is this . . . textualism? Critics on both the right and the left have argued that it is not. A few brave souls have tried to defend the major questions doctrine. Professor Ilan Wurman has argued that it is consistent with linguistic principles of statutory interpretation, such as the ordinary rule advanced by Professor Doerfler, that we need more evidence for certain propositions when the stakes are higher. Justice Gorsuch has argued that this is just another example of a constitutionally inspired clear statement rule, like the rules for retroactivity and waivers of sovereign immunity. But that just takes us back to where Justice Kagan and Justice Scalia started: Where do judges get the authority to introduce these clear statement rules that neither directly state constitutional requirements nor reflect the best interpretation of the text?
Now, it is not a coincidence that textualists have been debating the role of substantive canons, and they are right to do so. But the right way to think about these canons requires us to step beyond textualism. To repeat: Our system relies on not just textualism but unwritten law. We need to supplement textualism with the unwritten law that governs both interpretation and background principles against which interpretation takes place.
As I have written with Professor Stephen Sachs, “Legal canons don't have to be recast as a form of quasi-constitutional doctrine. They don't need to outrank the statutes to which they apply, because the canons can stand on their own authority as a form of common law.” Now, not every clear statement will pass this test, but this is the right test to apply to them.
For instance, many of the so-called clear statement rules are really just applications of the rule against implied repeals. There is an unwritten doctrine of sovereign immunity, and the rule against implied repeals says that we don’t lightly assume that a statute repeals that doctrine, just as we don’t lightly assume that it repeals another statute without enough evidence that the repeal is required by the text. The same thing is probably true of the rules against retroactivity and a number of other clear statement rules the court has described. These are just applications of the canon against implied repeals to well-established doctrines of common law that apply in federal courts.
The major questions doctrine is trickier to justify, and I don’t think Justice Gorsuch’s account is satisfactory. Maybe Professor Wurman’s argument, that the doctrine is an application of the principle of high-stakes interpretation, will get us closer. Even on Professor Wurman’s account, we will need a little more than textualism because we need to know what the baseline is. Which is the extraordinary high-stakes claim? Is it the agency’s claim to have a broad authority that it otherwise wouldn’t, so the baseline is one of limited government, state law, or private ordering? Or is it the court’s decision to set aside an agency action under the APA, so the baseline is one of judicial restraint and executive action? If it is the latter, the major questions doctrine would be backwards: You would expect courts to be more deferential on major questions because they need to be extra cautious before displacing the policies of the executive. We need to figure out what the actual underlying legal rules are and how the APA interfaces with them, not continue to scrutinize the text of the Food and Drug Act, the environmental protection statutes, or the latest ambiguous grant of agency authority. The answers come from law, not necessarily the text.
And from the conclusion:
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.
Posted at 6:18 AM