The Honorable Antonin Scalia & John F. Manning · November 2012
80 GEO. WASH. L. REV. 1610 (2012)
In recent years, the Supreme Court has placed increasing empha- sis on the meaning of the enacted text not only in statutory cases, but also in constitutional cases. One might say that this trend merely re- flects a commonsense approach to interpretation. In a Government of Laws, one in which the people and agents of the people owe fidelity to democratically enacted texts, it would perhaps seem uncontroversial to suggest that an interpreter’s job entails determining what those texts convey to a reasonable person—one conversant with our social linguistic conventions. Indeed, the same conclusion follows if one be- lieves (as we do not) that the object of the interpretive enterprise is to determine what the lawmakers meant rather than what the words con- vey: one should presumably focus upon the way a reasonable lawmaker—one conversant with our social linguistic conventions— would have understood the chosen language.
While gaining favor among judges, this trend has proven contro- versial among legal academics. Critics argue that textualism overem- phasizes the importance of the text and undervalues other evidence in conveying Congress’s policymaking directives. They claim that textu- alists behave selectively in their allegiance to the text and their will- ingness to rely on extrinsic evidence. They argue that even if textualism works in statutory cases, it simply cannot work for an old, broadly worded, and hard-to-amend Constitution, and that textualists therefore find it necessary to act inconsistently in constitutional and statutory cases. This Dialogue will examine, and attempt to answer, some of the most common questions raised within this debate.
