Fifty Shades of Textualism

Abstract

Almost every debate in statutory interpretation nowadays is framed as an argument between "Purposivists" and "Textualists." This overlooks a remarkable and increasingly important area of interpretive disagreement — disagreements between Textualists. While the lines of division between Purposivists and Textualists are intensely studied and thought to be well understood, the question of how interpreters applying what they believe to be the same interpretive methodology argue with each other has received far less attention, even as highly Textualist interpretation has risen to prominence in federal and state courts. What divides Textualists from other Textualists? Just posing the question raises many issues. What defines Textualism? When Textualists argue, what makes one textual argument superior to another? Is it even possible to argue over word and sentence meaning in a satisfying way?

This Article aims to explore this opening in the literature. It describes the areas over which Textualists argue when they argue about Textualism. In undertaking this exploration, it draws a number of conclusions, both about the structure of interpretive argument and about the modern meaning of Textualism. In doing so, it uncovers new areas of interpretive and normative conflict that seem to underlie interpretive disputes of all sorts — including those that divide interpreters of all stripes, not simply Textualists from one another.

Keywords: textualism, purposivism, statutory interpretation, legislation, legislative history, privileging, ordering, narrating, adapting, integrating, disciplining, pragmatism, theories of statutory interpretation