Authorial Intention, Purposive Interpretation, and the Incoherence of Strong Textualism

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. My primary analytical frame will be work in the philosophy of language and action theory on the interpretation of actions and speech acts more generally. My presupposition is that, to an important extent, we can treat the promulgation of a statutory text much like we can treat any other writing or verbalization which uses language in an attempt to do something in the world. The promulgation of a statute is the primary form of action by which a legislature attempts to exercise its constitutionally derived authority to do something to the background life of the political community - to get people to do something, refrain from doing something, change the way they do something, or the like. Strict textualism, on my view, is an attempt to interpret this action completely apart from its context, divorcing the speech act from its status as an action, and thereby rendering it unintelligible. The problem, as I see it, is that Scalia’s reasonable textualism is undertheorized insofar as it attempts to distinguish itself from strict textualism. We may understand, as a matter of common sense, that a criminal statute which punishes “using a gun in the commission of a felony” is not intended to cover situations where the gun is being used as a paperweight, hammer, or means of barter exchange, as opposed to as a weapon. However, this is no more than a somewhat commonly shared intuition, unsupported by rational argument, until we stop viewing the statute as a text to be pulled off the shelf and studied with a magnifying glass, as opposed to an action to be historically contextualized and interpreted in the way that we have no choice but to interpret any other action or utterance in order to render it intelligible: in light of the most plausible purposes that the action is undertaken, within the context in which it is undertaken. Thus, Scalia was right to reject strict textualism, but he was in error to believe he could abandon strict textualism and still remain a textualist, at least as strong a textualist as he intended to be. If this is true, textualism is a sort of category mistake as a theory of textual interpretation; if it is to be defended, it is to be defended as something else entirely, as something we do instead of faithfully interpreting the text, because, say, we do not trust judges to correctly and faithfully interpret past speech acts in their own native languages. This is a coherent view, but it’s a sufficiently strong one that it should be interpreted in those terms, and not in the terms that The text is the law, and it is the text that that must be observed.”