Textualism, (Un-)Faithful Agency, and Speech Act Theory

Abstract

Over the past several decades, textualism has become the dominant mode of statutory interpretation on the Supreme Court, almost entirely displacing traditional purposivism. Textualists have defended this development in a number of ways. They often argue that democratic theory requires a focus on text as the only way to show fidelity to the legislature’s place of priority as a norm-making institution in a democratic society. They also often argue that legislative intent does not exist in any meaningful sense, because results within social choice theory and other considerations often mean that there is no way to aggregate the beliefs and desires of individual legislators into a coherent, unique legislative purpose.


In this essay, I argue that these arguments are conceptually confused. First, textualism is not an acceptable way to serve as Congress’s faithful agent. If serving as an agent means to follow the norms laid down by one’s principal, faithful agency always involves taking into consideration the goals the principal intended to serve through issuing the commands given, and an agent who refuses to take these purposes into consideration is in dereliction of its duty. Second, the notion of legislative intent relevant to traditional purposivist theory is not the product of aggregating the beliefs and desires of individual legislators, so social choice theory is largely beside the point. Instead, purposivism is about imparting onto the act of legislative volition a set of beliefs and desires which justifies the statute as something worthy of faithful agency. This involves a search for “objectified intent,” albeit of a sort very different from textualism’s objectified intent. It is a version of the familiar reasonable person standard. If my arguments are right, the drive toward textualism has been, from its inception, a philosophical error. I conclude with a brief historical discussion of the virtues of traditional purposivism in relation to the concerns discussed in this essay.

Keywords: textualism; statutory interpretation; legal theory; jurisprudence; Scalia