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Supertext And Consistent Meaning, Steve R. Johnson

Scholarly Publications

Opponents of textualism as an approach to statutory interpretation sometimes deride it as myopic. The textualist, those opponents contend, puts on blinders, narrowing the perhaps vast panorama of possible perspectives on meaning to a narrow slice of the whole. Modern textualists beg to differ. They view that criticism as reductionist and are often quick to distinguish textualism from mere literalism. Thus, the leading contemporary textualist jurist – U.S. Supreme Court Justice Antonin Scalia – cautions:

Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute .... [T]he good textualist …

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Ruth Bader Ginsburg And Sensible Pragmatism In Federal Jurisdictional Policy, Tobias Barrington Wolff

All Faculty Scholarship

This article, written as part of a symposium celebrating the work of Justice Ruth Bader Ginsburg on the occasion of her fifteenth year on the Supreme Court, examines the strain of sensible legal pragmatism that informs Justice Ginsburg's writing in the fields of Civil Procedure and Federal Jurisdiction. Taking as its point of departure the Supreme Court's decision in City of Chicago v. International College of Surgeons, in which Ginsburg dissented, the article develops an argument against strict textualism in federal jurisdictional analysis. In its place, the article urges a purposive mode of interpretation that approaches jurisdictional text with a …

Against Textualism, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Modern textualists have assumed that careful attention to constitutional text is the key to the recovery of the Constitution's original public meaning. This article challenges that assumption by showing the importance of nontextual factors in early constitutional interpretation. The Founding generation consistently relied on structural concerns, policy, ratifiers' and drafters' intent, and broad principles of government. To exclude such nontextual factors from constitutional interpretation is to depart from original public meaning because the Founders gave these factors great weight in ascertaining meaning. Moreover, for a modern judge seeking to apply original public meaning, the threshold question is not simply; "How …