In the ABA Journal, Bryan Garner: Old-fashioned textualism is all about interpretation, not legislating from the bench. From the introduction:
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.”
…
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…
(Via How Appealing).
Posted at 6:01 AM