Debating Textualism

The University of Pennsylvania Law Review’s online journal, Pennumbra, has a debate on the future viability of textualism. The debate focuses on Professor Jonathan Siegel’s important recent article, “The Inexorable Radicalization of Textualism,” which contends that textualism necessarily leads to unacceptable results and is therefore doomed to lose the “interpretation wars.” Here’s a summary of my response to Siegel (the summary was drafted by the Pennumbra editors):

In Is Textualism Doomed?, Professor Ilya Somin counters Professor Siegel’s argument that textualism is ultimately doomed to irrelevance because its “inexorable radicalization . . . will cause it to lose the interpretation wars.” Somin contends that Siegel’s normative critique of textualism and positive prediction about its future are overdrawn. In Part I, Professor Somin shows that adherence to text does not inevitably lead to absurd and extreme results. In Part II, Somin claims that Siegel has understated the importance of textual ambiguity. He argues that when faced with an ambiguous text, resorting to extrinsic evidence of meaning is entirely consistent with textualist premises and may sometimes even be required by them. In Part III, Somin finds that textualism is here to stay, and will not “work itself pure” as Siegel has argued. Somin concludes by reasoning that because federal judges are not as interested in “grand theories of interpretation” and methodological consistency as academics are, they will not take textualism to its logical extreme.

Pennumbra also has an interesting response by Professor Lawrence Solan of Brooklyn Law School, which makes some of the same points, though I think Solan is ultimately less sympathetic to textualism than I am (we did not have any opportunity to see each other’s pieces prior to publication).

In many ways, I come to this debate as an outsider. Although I sometimes teach Legislation, it is not my primary field or even my secondary one. I am generally sympathetic to the textualism of jurists like Scalia and Easterbrook, but I think they sometimes take a good idea too far. As I say in my critique of Siegel, I don’t, for example, agree with Scalia’s view that textualists must abjure virtually all consideration of legislative history.

That said, it’s hard to avoid noticing the intuitive appeal of textualism. The idea that the law is ultimately embodied in the text enacted by the legislature rather than in the subjective “purposes” of the legislators strikes many people as just common sense. When I teach Legislation, I often find that many of the students are actually more textualist than I am. This may not be surprising in the case of conservative students generally sympathetic to Scalia’s jurisprudence (which, on many issues, I’m not). But I often get the same reaction from many moderate or liberal students as well.