Textualism, Constitutionalism, and the Interpretation of Federal Statutes

Abstract

Academic ferment concerning "interpretatIon" has clearly reached the "heady brew" stage. And, with partIcular reference to statutory interpretatIon, commentators have recently staked out positions representing most of the major currents and crosscurrents of legal scholarship. As with most topics that become "hot" in the law journals, there is thunder on the right, lightning on the left, as well as attempts to do more than muddle In the middle. Yet, whether commentators emphasize the potentially chaotic or self-interested nature of legislation, the internally contradictory or radically subjective nature of norms, or the necessity of tradition-based, communitarian, or pragmatic solutions to interpretive puzzles, one underlying message seems the same: attempts to link the interpretation of statutes to the commands of an identifiable legislature are doomed. If we ever believed in the naive "faithful agent" model of statutory interpretation, we can no longer.