Textualism vs. Purposivism

Textualism vs. Purposivism: A Detailed Examination

Introduction

• Traditionally, when a statute's text conflicted with its purpose, courts favored the "spirit" (purpose) over the "letter" (text).

• This "purposivism" was based on the idea that courts should act as faithful agents of Congress, enforcing Congress's commands as accurately as possible.

• Statutes are seen as tools to enact policy, meant to fulfill a larger purpose or goal.

• Ideally, the text should accurately reflect the intended purpose, but discrepancies arise due to:

  • Limited resources.

  • Foresight.

  • Inexact language.

• When a statute's text and purpose diverge, it's assumed Congress misspoke and a faithful agent (the court) can adjust the text to align with Congress's true intentions.

  • (1) Congress must have expressed its true intentions imprecisely, and (2) a judicial faithful agent could properly adjust the enacted text to capture what Congress would have intended had it expressly confronted the apparent mismatch between text and purpose.

The Rise of New Textualism

• The "new textualism," emerging near the end of the 20th century, challenged this view.

• It posits that the Constitution requires judges to prioritize the clear meaning of the enacted text, even if it clashes with the perceived background purposes.

• Themes of the textualist critique:

  • Only the statutory text has undergone the full constitutional process of bicameralism and presentment; the text alone is the law.

  • Using unenacted intentions to alter the meaning of a duly enacted text disrespects the legislative process.

  • Purposivism seeks to identify intent of a multimember body and is thus fanciful.

• The wording of a statute may reflect an unrecorded compromise that doesn't capture a coherent set of purposes.

• Precise phrasing is influenced by procedural factors (agenda manipulation, strategic voting) making it unrealistic for judges to accurately predict Congress's "intended" response to mismatches between text and purpose.

• Modern textualists focus on how a "skilled, objectively-reasonable user of words" would understand the text in context, rather than "actual" legislative intent.

Common Ground Between Textualism and Purposivism

• Recent scholarship suggests the gap between textualism, intentionalism, and purposivism may be narrowing.

• Modern textualists acknowledge the importance of context.

• Modern purposivists are more attuned to the statutory text.

• Text and purpose are always relevant and should be calibrated in each interpretive case.

• Textualism and purposivism share more common ground than some textualists admit.

• Ascertaining textual meaning requires using extrastatutory context.

• Statutory purpose (derived from sources other than legislative history) is a relevant ingredient of statutory context when a text is ambiguous.

• Purposivism is not a search for subjective legislative intent, but an objective framework to reconstruct the policy a hypothetical "reasonable legislator" would have adopted.

• the lawmaking procedures prescribed by Article I, Section 7 of the Constitution and the congressionally prescribed rules of legislative procedure unmistakably afford political minorities extraordinary power to block legislation or insist upon compromise as the price of assent, textualists believe that adjusting a statute's semantic detail unacceptably risks diluting

  that crucial procedural right.

Textualism & Extrastatutory Context

• Modern textualists believe language is intelligible only through shared conventions for understanding words in context.

• They attribute to legislators the intention to "say what one would be normally understood as saying, given the circumstances."

• They seek "'objectified' intent--the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris."

  • Context is essential. This includes everyday parlance, specialized conventions, and linguistic practices.

• Even seemingly obvious interpretations rely on context (e.g., a 'no dogs' ordinance).

• Textualists must ascertain unstated assumptions shared by speakers and audience.

• Legal parlance requires interpreters to consider specialized conventions and linguistic practices.

• Statutory phrases may have unstated connotations as a legal term of art.

• Settled common law practices may create unstated exceptions or qualifications.

• Textualists use off-the-rack canons of construction and substantive (policy-oriented) canons accepted as background assumptions.

• Textualists decipher obscure legal terms of art, potentially travelling far outside of the text.

• Example: Moskal v. United States construing "falsely made" securities. The Court used Blackstone's Commentaries and various state forgery statutes to conclude that the term referred only to forgeries, not to authentic documents containing false information.

• Textualists do not claim that a legislative majority actually subscribed to their attributed meaning.

• Textualists recognize context includes the mischiefs the authors were addressing and use this information when a statute is ambiguous.

• Textualists generally forgo legislative history, and instead make estimates of purpose from sources such as the statute's tenor/structure, its title, or public knowledge of the problems that inspired its enactment.

• They construct a hypothetical purpose because it's the judiciary's role to make sense rather than nonsense out of the corpus juris.

Legal Process Purposivism & the Enacted Text

• Purposivism relies on methods that textualists hold dear; they pay close attention to text, structure, technical/specialized meaning, and maxims of construction.

• The most influential version of purposivism uses an objective construct, and invokes a hypothetical legislator as the benchmark.

• Hart and Sacks, in their Legal Process materials, developed a rationalist approach to statutory interpretation.

• Hart and Sacks purposivists believe in interpretation entails the attribution of purpose, and they do not deny that semantic meaning of the text casts light on those purposes.

• They carefully consult the technical conventions that distinctively pertain to legalese.

• They pose the objective question of how a hypothetical "reasonable legislator" would have resolved the problem addressed by the statute, as opposed to seeking the real intent of the lawmakers.

• Purposivists start with the semantic meaning of the text and, the majority of the time, end there.

• United States v. American Trucking Ass'ns emphasized that there is no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.

• Purposivists are less willing than textualists to adhere to the conventional social meaning when contrary indications of purpose cut strongly against such meanings.

• Purposivists treat the text as a mere place holder for concocting plausible inferences about purpose.

• Purposivists take seriously the obligation to examine the semantic context carefully to ascertain colloquial or technical nuances in the usage of statutory language.

• Purposivists accept the recurrent possibilities of reading general language as subject to assumed but unexpressed qualifications in terms of customary defenses or other limiting policies of the law.

• Purposivists worry about indeterminacy of canons of construction, but rely on those canons to help determine whether a particular meaning is linguistically permissible, if the context warrants it.

• Hart and Sacks urged interpreters to consider statutory language/structure, well-settled background assumptions, maxims of interpretation, canons of clear statement, and the political context surrounding the enactment; this material was to be considered with an eye toward presuming that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably.

Textualism, Purposivism, and Legislative Supremacy

• Textualists prioritize semantic context (how a reasonable person uses words), while purposivists prioritize policy context (how a reasonable person would address the mischief being remedied).

• Textualists ask how a skilled, objectively reasonable user of words would have understood the text in the circumstances, while Legal Process purposivists ask how reasonable persons pursuing reasonable purposes reasonably would have resolved the policy issue.

• Justifications for disparate preferences are rooted in competing understandings of the legislative process, which relates to the constitutional ideal of legislative supremacy.

• Purposivists think it unrealistic to suppose that Congress knows or cares about the semantic detail of often complex statutes; enforcing the overarching policy serves legislative supremacy and promotes policy coherence/adaptability.

• Textualists believe the purposivist approach disregards legislative compromise; giving precedence to semantic context enables legislators to set the level of generality at which they wish to express their policies, which permits them to strike compromises.

Semantic vs. Policy Context

• Textualists emphasize customary usage and habits of speech. They assemble linguistic data, dictionary definitions, and canons into the best account of the statute's meaning; their inquiry includes trade usage, substantive canons of clear statement, and colloquial nuances, and they believe that background purpose is beside the point when the text is clear in context.

• Policy evidence includes public knowledge of the mischief the lawmakers sought to address, the way competing interpretations of a discrete statutory provision fit the policy, and the way alternative readings of the statute fit the policy expressed in similar statutes.

• Practitioners of each methodology will consider both forms of contextual evidence in cases of ambiguity; textualists give determinative weight to clear semantic cues even then they conflict with evidence from the policy context; purposivists allow sufficiently pressing policy cues to overcome such semantic evidence.

• Example: West Virginia University Hospitals, Inc. v. Casey. Justice Scalia found clarity in the semantic context, emphasized countless other fee-shifting statutes, and leveraged the maxim expressio unius est exclusio alterius; Justice Stevens reasoned that if a prevailing plaintiff could recover a reasonable “attorney's fee,” it made no sense to deny the plaintiff similar recovery for an expert.

Coherence, Compromise, and Legislative Supremacy

• Both textualists and purposivists attribute meaning to a statute based on objective criteria.

• Textualists use the understanding of a hypothetical reasonable person conversant with applicable social and linguistic conventions, while purposivists use the understanding of a hypothetical reasonable policymaker conversant with all of the circumstances surrounding the enactment.

• The choice between them rests on political theory.

Purposivists and Legislative Supremacy

• Purposivists like Max Radin suggest that policy context assures greater fidelity to legislative supremacy in our constitutional system.

• The legislature has the constitutional right and power to set the statute's purpose and the court/administrator has the duty to obey it; if the purpose is clear, the implemental part of the statute should be subordinated to it.

• Textualists sometime produce results that cannot easily be ascribed to the actual understanding of the requisite legislative majority.

• Interpreters were to derive a constructive rather than subjective legislative purpose by asking how a reasonable person familiar with the operative text, the background rules of interpretation, and the full context of the legislation would have resolved the interpretive problem at hand.

Semantic Import and Legislative Compromise

• Textualism rests upon three related premises:

  • Searching for semantic meaning represents a theoretically sound basis for attributing statutory outcomes to legislative choice, thereby satisfying the minimum requirement for legislative supremacy.

  • The approach advanced by purposivists does not itself plausibly capture actual legislative preferences, purposivism has no superior claim to the attention of judges acting as faithful agents.

  • Giving precedence to semantic context (when clear) is necessary to enable legislators to set the level of generality at which they wish to express their policies. In turn, this ability alone permits them to strike compromises that go so far and no farther. Semantic meaning is the currency of legislative compromise.

• Joseph Raz shows why textuaists can forswear the iea of actual legislative intent yet still claim to enforce statutory results that are meaningfully attributable to legislative choice; Raz explains that legislators intend to enact a law deciphered according to interpretive conventions prevailing in the legal culture when emphasizing that legislators have the means to establish the contents of the text for which they are voting.

  • Legislators who have a minimal intention know that they are, if they carry the majority, making law, and they know how to find out what law they are making.

• Since purposivists are unable to show that their approach reliably captures actual legislative preferences, there is no reason to think that purposivism better serves legislative supremacy.

• Purposivism depends on the assumption that a reasonable person was framing coherent legislative policy. But measured against the true workings of the legislative process, that is an unreasonably optimistic view.

• By giving priority to semantic context (when clear), textualism offers a more defensible account of legislative supremacy; semantic meaning uniquely enables interpreters to respect the centrality of legislative compromise.

• The legislative process created by Article I, Section 7 effectively creates a supermajority requirement and affords political minorities extraordinary power to stop the enactment of legislation and to insist upon compromise; a bias in favor of the status quo makes it difficult for majorities to translate impulses seamlessly into legislation.

• Respect for the details of semantic meaning enables legislators to express the level of generality at which they wish to articulate the policies to which the have agreed; legislators can choose to frame directives as rules rather than standard to assist in this regard.

Conclusion

• When modern textualism first emerged, textualists cast their approach as challenge to the strong form of atextual, purposive interpretation that the Court had long practiced; while textualists also argued that language has meaning only in context, this recognition requires them to routinely consult extratextual sources.

• Properly understood, textualism means that in resolvng ambiguity, interpreters hould give precedence to semantic context rather than policy context, though Purposivitsts claim this approach is backwards;

• Legislators vote on the basis of the semantic meaning and not based on policy minutiase, where the dictates of legislative supremacy obligate the interpreter to help the legislature realize the statute's overarching goals.

• One pluasible version of legislative supremacy ascribes to legislators an intention to adopt texts that will be interpreted according to the accpeted conventions of reading language in context, where Article I, Section 7 gives the power to political minoroities to block or slow legislation; in this way semantic detail enables legislators with leverage in the process to express the limits that are necessary to secure their assent; if the Court feels free to adjust the semantic meaning of statutes when the rules embedded in the test seem awkward, then legislators cannot reliably use words tot articulate boundaries that are necessary to secure a bill's enactment.