When should a court interpreting some statutory provision consider information besides the text—legislative history, surrounding provisions, practical consequences, the statute’s title, etc.? This might be one of the most asked questions of statutory interpretation.
One recurring answer in the Court’s cases is the “plain meaning rule,” which is something of a compromise. If the statute’s meaning is “plain,” the other information can’t be considered. If it isn’t plain, the information comes in. The rule seems to make obvious sense as an intermediate position between strict textualism and some form of pragmatism.
And yet, once we think a little more deeply about the plain meaning rule, we ought to see that its basic structure is puzzling. Information that is relevant shouldn’t normally become irrelevant just because the text is clear. And vice versa: irrelevant information shouldn’t become useful just because the text is less than clear. We can sketch some conditions under which this puzzling structure could be justified, but we highly doubt that they could justify the plain meaning rule in its current form.
Many tenets of statutory interpretation take a peculiar form. They allow consideration of outside information—legislative history, practical consequences, the statute’s title, etc.—but only if the statute’s text1 is unclear or ambiguous. These tenets are often expressed as a variation of the “plain meaning rule.” If the text’s meaning is “plain,” the other information can’t be considered. If it isn’t plain, the information comes in.
On its surface, the rule has an intuitive appeal. It seems like a safe intermediate position between strict textualism and some form of all-things-considered eclecticism or pragmatism. But if we poke below the surface, we ought to see that the basic structure of the plain meaning rule is quite puzzling. In our normal lives, in most contexts under the rules of evidence, and elsewhere, information is either useful or not. Information that is relevant shouldn’t normally become irrelevant just because the text is clear. And vice versa, irrelevant information shouldn’t become useful just because the text is less than clear.
This puzzling structure—“consider only in case of ambiguity”—deserves investigation. In this Article, we first explain the puzzle more formally, and then begin that investigation. It turns out that we can sketch some conditions under which this puzzling structure could be justified, for certain kinds of evidence. But nobody has shown that the plain meaning rule in fact meets these conditions, and we rather doubt that they could justify the plain meaning rule across the board. More importantly, we suspect that most interpreters have never even asked themselves the question.
Note that we do not take a position on whether one ought to be a textualist or an intentionalist or something else in the first place. That is of course “the big debate”2 in statutory interpretation. Similarly, we take no position here on the correct theory of statutory “meaning.”3 This is not to deny that there are right answers to these questions. But the plain meaning rule attempts to transcend those debates, and our criticisms of it do, too.
Textualists who think they have good reasons to ignore legislative history or the like shouldn’t automatically cave when the statute is ambiguous. Intentionalists who insist that legislative history is relevant shouldn’t automatically discard it when the text by itself seems clear. The plain meaning rule asks both sides to surrender the courage of their convictions. That surrender has not been justified, and perhaps cannot be.
- 1. To be sure, considering “just” the text requires attention to minimal information about the text (for example, that it is a legislative text). See generally John R. Searle, Literal Meaning, 13 Erkenntnis 207 (1978).
- 2. William N. Eskridge Jr, Book Review, The New Textualism and Normative Canons, 113 Colum L Rev 531, 532 (2013). See also Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum L Rev 1189, 1241 (2006) (observing the “lively and ongoing academic debate over whether it is legitimate for courts to rely on extratextual sources when construing statutes”) (emphasis omitted).
- 3. See Richard H. Fallon Jr, The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U Chi L Rev 1235, 1243–52 (2015). See also Frederick Schauer, An Essay on Constitutional Language, 29 UCLA L Rev 797, 798–99 (1982).