ABSTRACT
This essay is intended to shed some light on the question of how we should interpret legal texts – particularly statutes, although my remarks here should have some implications for other statute-like enactments, such as administrative regulations and statute-like provisions in written constitutions. My starting point will be a discussion of textualism in Antonin Scalia’s Tanner Lecture on Human Values, delivered at Princeton University on March 8 and 9, 1995. In that lecture, Scalia attempts to distinguish between two forms of textualism, what we might call strict textualism and reasonable textualism. Strict textualism follows the words of the text even when their application to the facts of the case are absurd and clearly outside the statute’s intent. Reasonable textualism, Scalia’s proposed alternative, was intended as a means of avoiding the absurdity possible when judges behave as strict textualists, but without letting the judiciary off the leash of its constitutional mandate, which Scalia and other textualists believe will occur if textualism is abandoned altogether. I intend to advance the argument that the distinction between strict and reasonable textualism is incoherent, because the focus on legal enactments qua texts is wrongheaded …
Perkins, Jordan, Authorial Intention, Purposive Interpretation, and the Incoherence of Strong Textualism (March 5, 2021).
First posted 2021-03-17 08:00:06
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