Saturday, April 23, 2005
The Immorality of Textualism?
This new paper, "The Immorality of Textualism," by Professor Andrei Marmor, caught my eye. Here is the abstract:
In this short essay I argue that textualism, as a doctrine of statutory interpretation, is inherently deceptive and therefore immoral. Textualism is typically presented by its adherents as an interpretive practice that is motivated by respect for democracy and respect for the authority of the legislature. But in fact, textualism's preoccupation with ordinary meaning and literal application of statutes is motivated by constraining the legislature's ability to pursue broad regulatory policies. Authorities do not want to be understood literally. Authorities purport to govern, and governance requires cooperation in the spirit of its goals, not strict adherence to the letter of its directives.
The key to the argument, I suppose, is the claim that the "motivation" behind textualist approaches to statutory interpretation is a desire to "constrain[] the legislature's ability to pursue broad regulatory policies" and not a "respect for democracy." To which I might respond, "no, actually it *is* respect for democracy." What comes next?
Rick
https://mirrorofjustice.blogs.com/mirrorofjustice/2005/04/the_immorality_.html