Legislative Intentions in Antonin Scalia’s and Bryan Garner’s Textualism

Abstract

In Reading Law, the late Justice Antonin Scalia and his co-author Bryan Garner defend “pure textualism,” partly because they deny that legislatures can have any intentions other than to enact statutory texts. This denial would, if adhered to rigorously, make their version of textualism unviable. It is inconsistent with context and purpose being used to (a) dispel ambiguities, (b) correct scrivener’s errors, (c) reveal presumptions or background assumptions that qualify literal textual meanings, (d) reveal most kinds of implicit and implied content, and (e) resolve conflicts between the interpretive canons. It would, in other words, entail hyperliteralism, which Scalia and Garner explicitly reject. This is no doubt why, as I show, they do not rigorously adhere to that denial. To the contrary, in accepting that context and purpose can be used to do all these things, they frequently rely on legislatures having intentions in addition to merely enacting statutory texts. Notwithstanding their theoretical dismissal of substantive legislative intentions as non-existent, their actual interpretive practice confirms the intentionalist thesis that sensible interpretation of enacted laws necessarily presupposes the existence of such intentions, and endeavors to reveal and clarify them.