PENNumbra publishes responses to The Inexorable Radicalization of Textualism
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This issue contains responses to The Inexorable Radicalization of Textualism by Jonathan R. Siegel.
In The Inexorable Radicalization of Textualism, Professor Jonathan Siegel argues that textualism differs fundamentally from intentionalism and purposivism, and that the gap between them gets wider with time. Siegel concludes that textualism inexorably radicalizes itself as textualists gradually realize that their axiom—the statutory text is the law—compels them to reject moderating influences, such as the “absurd results exception,” that accommodationists claim bring interpretive methods together. As a result, Siegel finds that textualism worsens over time, whereas intentionalism and purposivism are better able to improve themselves over time.
In Opportunistic Textualism, Professor Lawrence Solan argues that while Professor Siegel expresses reasonable concern about the consequences of carrying textualism to its logical extreme, “it is virtually impossible to be a textualist on the ground.” Because judges are inclined to relax their embrace of formalism in favor of other values, the extreme results that Siegel fears cannot be consistently realized. Solan looks to the example of radical textualism that Siegel offers: a rigid dissent by Judge Bybee from a Ninth Circuit decision correcting a clear statutory drafting error. Solan points out that Judge Bybee has been willing to look to legislative history, intent, and statutory purpose in a variety of other areas, and that even the staunchest textualists speak of legislative intent when resolving ambiguous statutes. Solan closes by acknowledging that formalism, like other canons of construction, has been used opportunistically to reach results driven primarily by ideology. Though he shares Professor Siegel’s concerns about some of the cases discussed in The Inexorable Radicalization of Textualism, he concludes that those results do not represent a radical or inevitable movement toward “law without mind.”
In Is Textualism Doomed?, Professor Ilya Somin counters Professor Siegel’s argument that textualism is ultimately doomed to irrelevance because its “inexorable radicalization . . . will cause it to lose the interpretation wars.” Somin contends that Siegel’s normative critique of textualism and positive prediction about its future are overdrawn. In Part I, Professor Somin shows that adherence to text does not inevitably lead to absurd and extreme results. In Part II, Somin claims that Siegel has understated the importance of textual ambiguity. He argues that when faced with an ambiguous text, resorting to extrinsic evidence of meaning is entirely consistent with textualist premises and may sometimes even be required by them. In Part III, Somin finds that textualism is here to stay, and will not “work itself pure” as Siegel has argued. Somin concludes by reasoning that because federal judges are not as interested in “grand theories of interpretation” and methodological consistency as academics are, they will not take textualism to its logical extreme.