Is intensive textual analysis inherently textualist?

Michael Dorf writes that the opinion in FCC V. AT&T is “a bit too textualist for [his] taste”:

[A] fuller treatment of the subject would have devoted more attention to whether corporations have interests sufficiently like those of natural persons to warrant interpreting “personal privacy” to encompass those corporate interests.  I think—given the overall context of the other FOIA exceptions—that the result would not have changed, but I  worry that in another case this eschewal of dynamic and purposive statutory interpretation could lead to unwarranted results.

And Dorf isn’t the only one who has complained about the decision’s textualist approach. At The Atlantic, Garrett Epps is rather harsh in his criticism:

There are, of course, different ways of deciding a statutory case like this. A judge could look to the purpose of the statute—encouraging greater transparency—and reason that extending this (at best) ambiguous exception to corporations would work against that. Or the case could turn on the legislative history of the provision–what did members of Congress and committees say when the statute was enacted? Or it could scour caselaw for analogous uses of the terms. AT&T’s brief had argued from federal caselaw and executive branch documents that, it said, supported its interpretation. The FCC had argued that extending “personal privacy” to corporations would require courts to engage in “a balancing of such newly created organizational privacy interests against the interest of the public (including some of the same shareholders and constituents) in disclosure.”

But Roberts starts and finishes in the reference section. He is to word meanings what Captain Ahab was to pale whales. Nothing in the opinion addresses any larger question of policy or jurisprudence, or even hints that he knows what the statute is for. For all the opinion shows, the Court could be a Turing machine, analyzing the structure of a cryptogram without reference to its “meaning.”

One question that may follow from these comments is whether an intensive focus on the text (and especially an approach that draws on linguistics) is consistent with interpretive theories other than textualism.

The answer is most definitely yes.

Even if you think that the goal of statutory interpretation is to identify the legislature’s intention or the statute’s purpose, the range of possible interpretations is generally limited by the statute’s language.  (I say “generally limited” because of cases like Green v. Bock Laundry Machine Co., where even Justice Scalia endorsed a result that did violence to the text, in order to avoid an interpretation that “produces an absurd, and perhaps unconstitutional, result.”) Thus, Justice Breyer—one of the Supreme Court’s leading non-textualists—writes in his book Active Liberty that courts should look for the statute’s purpose “in difficult cases of interpretation in which language is not clear.” And it was Breyer who wrote the opnion in Muscarello v. United States, with its extensive examination of dictionary definitions, etymologies, and usage in news stories.

So since the statute’s language is always at issue, it’s always important to get the language issues right.

One response to “Is intensive textual analysis inherently textualist?

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