At Dorf on Law, Eric Segall: Interpreting Law and the Useless Debates Over Textualism and Purposivism. From the introduction:
There is a tremendous volume of legal scholarship on the proper way to read statutes … The main dispute today is between those who identify as "textualists" or "strict textualists" and those who identify as "purposivists." The most important difference between these theories, which is often overstated, is that textualists focus mainly on the statutory text, and in most cases the common usages of the words in that text, while purposivists, while starting with the text, are also concerned with the purposes of the law at issue and the consequences of whatever interpretation the court decides to adopt. Everyone agrees these issues only arise when the statute in question is imprecise or unclear. Where the law is capable of only one meaning, judges should apply that meaning absent gross absurdity.
This blog post has one narrow objective given the oceans of words that have been spent on this topic, especially recently. With one minor exception, this post argues that this debate is silly and unnecessary. The reality is that textualists and even those who claim to be strict textualists often use the techniques of purposivists and purposivists of course take the text of statutes quite seriously. This debate is spent and we all should move on, as I explain below.
The one exception is for those judges who, following the lead of Justice Scalia, believe that legislative history should be ignored completely when they interpret statutes. This extreme position, which luckily very few judges accept, could certainly make a difference in some cases, especially in terms of the justifications for results judges write into their opinions. This blog post ignores the issue, however, because it has little bearing in the real world and the position is absurd, especially for a Justice who thought judges should try to ascertain the original public meaning of the ancient words of the United States Constitution by looking at sources such as the Federalist Papers.
We should move on from the textualist-versus-purposivist battles because, to put it simply, judges should use all relevant information to try and ascertain the meaning of statutory text and the purposes behind the law, which often includes a judge's best sense of what the law was trying to accomplish. There is simply not an either/or choice between text and purpose. The two are related and judges should not ignore one at the expense of the other. How the two will be balanced will of course depend on the specific facts and context of each case. …
I mostly agree, particularly as to the point that textualism embraces context, with a couple of caveats and reservations:
(1) Professor Segall seems to be talking about an "original intent" version of purposivism that interprets the text in accordance with the purpose (intent) of the enactors at the time of enactment. So described, it is a version of originalism (though perhaps somewhat distinct from textualist originalism). There is, I think, another version of purposivism that asks something like: what result would the enactors want today if they were familiar with modern circumstances? This version is very different from textualism.
(2) I'm not sure that all purposivists agree that "Where the law is capable of only one meaning, judges should apply that meaning absent gross absurdity." I think at least some purposivists think that one can depart from the text if it leads to results contrary to the purpose (intent) of the enactors. Text is a relevant factor, they would say, but isn't decisive in itself. If so, that's sharply distinct from textualism, which would not allow such a departure.
(3) Scalia's rejection of legislative history was not a rejection of context. It was founded on two main principles: (a) if the statute is clear, one should not use legislative history to pursue a supposed purpose of the statute that is contrary to its text (this is related to point (2) above); and (b) in interpreting an ambiguous statute, modern legislative history is so unreliable and subject to manipulation that it shouldn't count as evidence of meaning. The latter point isn't a denial of the relevance of context; it's a specific denial of the relevance of modern legislative history. That's why there's no contradiction between Scalia's rejection of modern legislative history and his use of founding-era contextual materials such as the Federalist Papers to interpret the Constitution.
Posted at 6:12 AM