When Justice Antonin Scalia began writing about statutory interpretation, he attacked the then-dominant proposition that the point of statutory interpretation is to identify and enforce Congress’s unenacted purposes. He argued that the existence of congressional intent is pure fiction and that it would not control even if it could be found. Because the Court cited legislative history as authoritative evidence of legislative intent, he rejected its use as illegitimate. He focused on the text and insisted that its meaning controlled. His arguments were so successful that today, one would be hard pressed to find anyone willing to say that a court should depart from statutory text to better serve Congress’s purpose. There is a general consensus that the text constrains.
With everyone talking text and rejecting intent, it can sometimes seem that almost all of the differences lie in application. Judges might have different thresholds for ambiguity, for example, or disagree about the utility of canons. Such disagreements are important and can affect the outcome of cases, but they do not inevitably reflect conflicting first-order principles about the aims of statutory interpretation.
Fundamental differences, however, do remain, and the process-based turn in statutory interpretation underscores the point. Recently, scholars have begun arguing that interpretive doctrines should account for the on-the-ground realities of the legislative process. Considering how their arguments might influence textualism draws attention to textualism’s own assumptions. The process-based arguments assume that everyone, including textualists, strives to calibrate interpretive doctrines to actual drafting practices. Textualists, however, strive to calibrate interpretive doctrines to actual reading practices. The disagreement is not about statutory meaning versus congressional intent, as it was in the old days, but about which set of linguistic conventions determine what the words mean.
In this Essay, I explore the implications of the new process-based theories for textualism. Part I describes the process-based turn in statutory interpretation, which maintains that courts should take their interpretive cues from congressional practices and procedures. Members of Congress (and their drafters) rely heavily on legislative history but put much less stock in dictionaries and canons. Courts should follow suit, the argument goes, because doing so would better reflect Congress’s understanding of the language it enacts.
Part II claims that these process-based arguments do not require textualists either to abandon dictionaries and canons or to begin using legislative history. While textualists have not always made their assumptions clear, they approach language from the perspective of an ordinary English speaker—a congressional outsider. In contrast, the process-based theories approach language from the perspective of a hypothetical legislator—a congressional insider. Congressional insiders may reject particular canons, eschew dictionaries, and treat certain legislative history as a guide to statutory meaning. Textualists, however, do not use canons and dictionaries in an effort to track the linguistic patterns of the governors; they use them because they reflect the linguistic patterns of the governed. And if the conventions of legislative history or the legislative process reveal that Congress used language in something other than its natural sense, a textualist court should not necessarily defer to that meaning. What matters to the textualist is how the ordinary English speaker—one unacquainted with the peculiarities of the legislative process—would understand the words of a statute. Congressional insiders and outsiders share common ground as English speakers, but there may be some respects in which their linguistic conventions differ. When they do, the outsider’s perspective controls.
Part III sketches reasons why textualists interpret language from the perspective of an ordinary English speaker rather than an ordinary member of Congress. Process-based theories argue that courts, as faithful agents, should adopt interpretive methods to track the drafting practices of Congress, their principal. Part III suggests that textualists would reject this approach because they subscribe to a different conception of faithful agency. While textualists have not fully developed the point, they view themselves as agents of the people rather than of Congress and as faithful to the law rather than to the lawgiver. The lines of their loyalty thus run differently. Textualists consider themselves bound to adhere to the most natural meaning of the words at issue because that is the way their principal—the people—would understand them.