Could the method of interpretation preferred by many members of the U.S. Supreme Court be leading judges to incorrect conclusions about the law?
According to Richard Ekins, Professor of Law and Constitutional Government at the University of Oxford and Global Distinguished Professor of Law at Notre Dame Law School, textualists — judges who prioritize the ordinary or plain meaning of a statute — accept certain “dogmas” that don’t always hold up under scrutiny.
On November 12, Ekins delivered Harvard Law School’s annual Herbert W. Vaughan Memorial Lecture, in which he argued for the centrality of legislative intent when interpreting the legal meaning of statutes.
“One cannot understand the legal meaning and effect of an enactment without reasoning about a host of other rules and presumptions,” Ekins said. “The text alone is not enough.”
Those presumptions, Ekins suggested, are best explained as efforts to arrive at reasonable inferences about the change that the legislature intended to enact into the law.
After an introduction by Jack Goldsmith, the Learned Hand Professor of Law at Harvard, Ekins began his talk by acknowledging that “there is a truth in textualism that needs to be recognized and affirmed.”
“If textualism can be crudely summarized as a theory that focuses on the plain or ordinary meaning of the statutory text,” he said, “my own view is that the object of statutory interpretation is to infer the intention, principally the intended meaning of the legislature that enacted the statute.”
The text is “indispensable” to this inquiry, Ekins contended — but not entirely sufficient on its own.
At the same time, Ekins suggested that a number of so-called dogmas have led textualists to dismiss or marginalize the idea of legislative intent.
“One cannot understand the legal meaning and effect of an enactment without reasoning about a host of other rules and presumptions. The text alone is not enough.”
The first dogma to question, Ekins said, is a simple one: that the text is the law.
“The text of the statute is not itself the law,” he said. “The law that we have is the way it is because Congress enacted the statute, taken together with other relevant statutes and propositions of law.”
For example, Ekins said, in the case of a typo or errant word in the statute, “the words on the page do not [actually] constitute the law.”
Ekins was careful to point out that he does not believe that “legislation is simply raw material from which Justice Hercules conjures up the law he thinks that we should have.”
But neither, he added, does it “float free, rather than being an exercise of authority” of the legislative body.
Ekins also took issue with another key tenet of textualism — that the “plain and ordinary meaning” of a statute is its legal meaning. Language is more than the semantic content of a sentence, Ekins argued. “The question that the judge should ask is not what did the words mean, but what have the words been used to convey.”
While textualists recognize that a “reasonable reader” will infer more than the literal text provides because of how language works, Ekins said, doing so without bringing in information about the law’s author and their intention “risks remaking the statute in [the reader’s] own image.”
It also poses a risk of sliding into literalism or “even willful blindness to the way in which Congress made use of language,” Ekins argued.
He pointed to the famous Supreme Court case Smith v. United States (1993), in which Congress added a sentencing enhancement for a defendant who allegedly “used” a firearm during the commission of a drug trafficking crime. In that case, the defendant had offered to trade the gun for cocaine — he had not used it as a weapon.
While the Court’s majority agreed that the defendant had “used” the gun for purposes of the statute, Associate Justice Antonin Scalia ’60 famously dissented, arguing that the “ordinary meaning of ‘use’ in this context meant use as a firearm,” Ekins recalled.
While Ekins concurred with Scalia’s conclusion, he disagreed with the justice’s reasoning.
“The question should instead have been about how Congress used the term ‘use,’ in this context here,” Ekins said. “Justice Scalia had good reason to think Congress used the term to convey ‘use as a firearm.’ But this was not a conclusion about plain or ordinary meaning, but about intended meaning.”
Context without intention?
Ekins also disputed the notion that context can be understood without intention. Textualist judges and scholars generally “take pains to note that meaning is contextual,” he said.
In other words, textualists accept the use of context. Yet context itself does not generate meaning, Ekins argued. Instead, “the significance of context is what it reveals about the author, which helps frame the inferences we make about what meaning was intended,” Ekins said.
Ekins also disagreed with those who view textualism as the only constitutionally permissible method of interpretation. “Nothing in the Constitution’s provisions for the legislative process requires or permits the judge to close his or her eyes to [the intention of Congress] and instead to focus on the text alone.”
Ekins touched on another so-called “dogma”: that the complex array of negotiations and dealings that comprise the lawmaking process make it difficult to discern what the legislature’s intent really was — if it indeed had one at all.
But this is a cynical take, Ekins suggested. “It’s wrong to assume that the legislature is inscrutable, and one can never know why it acts as it does because the nature of congressional politics renders it incapable of acting coherently.”
Legislation is designed to make targeted changes to the law, he said, and as such, “in making inferences about why the statutory text was framed the way it was, we were attempting to recover the plan of action on which the legislators jointly acted as one single agent.”
Ekins addressed the idea that judges ought to banish any inquiry into why the legislature may have acted as it did. “The point of reasoning about the legislature’s reasoning is not to remake the statute in one’s own image, but to infer what was decided by Congress and to avoid misreading the statute.”
Finally, Ekins pointed out that textualism is particularly concerned with restraining judges. But in some cases, he said, adherents are concerned “more that the law is not made by a judge, rather than it is the law that is made by Congress.”
Ultimately, Ekins said he believes that textualist judges often reach the correct conclusions, despite the problems with their method.
“There is a truth in textualism,” he said, referring to the priority given to the statute’s text. But also, “the responsibility of the interpreter is to make sense of the rational act of language use that is the enactment of a statute, the meaning of which is established at the time of enactment.”
To do otherwise, he suggested, “would risk failing to honor the exercise of the legislative power.”
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