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Textualism Outline

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Textualism Variations of textualism
* 1. Not all are conservative
* 2. Temporal spectrum: Presenttense/Holmesian textualism vs. original textualism
* unclear whether Scalia is originalist or Holmesian
* 3. "Exclusiveness" spectrum: Hard/new textualism vs. soft textualism
* hard: no legislative history will be considered
* soft/old textualism: start w text, see if it's clear, check work with legislative history + other values Burger, Rehnquist (see Weber dissent)
# NOTE: this is opposed to Hart and Sacks (legal process)start w legislative history + values, then check work against text
* 4. Tolerance for absurdity spectrum: Easterbrook vs. Scalia
* 1. EasterbrookNo absurdity exception: who is to say what is absurd? (see majority in Marshall)
* 2. ScaliaAbsurdity exception: see Scalia dissent in Bock Laundry
# soft textualists always recognize absurdity exception
* 5. Forms of meaning spectrumStrict vs. nonstrict textualism
* 1. Strict textualism: "stingy" meanings only
* 2. Nonstrict textualism: various forms of plain meaning (scientific, dictionary, plain) will be looked at
* 6. Central to textualism is belief that legislative intent can be gleaned from text alone.
* New Textualism is a term to describe approaches of Scalia and Easterbrook that began in 1970s.
* Temporal: both originalist and presenttense
* Tolerance for absurdity exception: either
* Forms of meaning: nonstrict
* Exclusiveness: very hard. However, originalists will admit committee reports not to reveal intent of legislators, but rather to reveal assumptions authors entertained about how their words would be understood or to reveal that terms with denotation clear to outside are actually terms of art

TEMPORAL: PresentTense/Holmesian Textualism
* Presenttense textualism (textualism with dynamic streak): Meaning of terms in statute is ordinary and current meaning, i.e. meaning of day when interpreting (antioriginalist). If statutory meaning is plain, one cannot use legislative history. If statutory meaning is ambiguous, legislative history is fair game.
* Caminetti v. U.S. (1917)
* Statute: Criminalized transportation of/inducement to travel of "any woman or girl to go from one place to another in interstate or foreign commerce, or in any territory or the District of Columbia, for the purpose of prostitution or debauchery, or for any other immoral purpose."
* Facts: D was convicted for bringing woman from California to Nevada to "become his mistress + concubine."

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Majority (Holmesian Textualism): using plain meaning rule, D is covered by this statute because bringing woman across state line to become concubine is "for an immoral purpose."
# Ruger:
* Dynamicism: today, "immoral" might be defined differently, and outcome might be different
* Canons: "or for an immoral purpose" is vague catchall that derives meaning from previous words in list and presumably is intended to refer to similar activities
# Does not consult: legislative purpose (prevent "commercialized vice"), title of statute ("White Slave Traffic Act")
* Dissent (purposivist): Term "immoral purposes" in statute should be in light of words preceding it and in terms of legislative purpose

EXCLUSIVENESS: Soft Textualism Text is the best evidence of legislative intent, BUT
* Legislative history is allowed as a check on text
* Absurdresult exception is allowed Cases TVA v. Hill STATUTEText of Endangered Species Act: Federal agencies must "insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered species or "result in the destruction or modification of habitat of such species" (emphasis added by Court)
* 1967 Dam construction begins
* 1973 Endangered Species Act
* 1974 snail darter's habitat flooded? another appropriations bill for dam, dam only 1 year away from termination BURGER (MAJORITY)Soft Textualism
* 1) Looks at text firstThere is no reasonableness exception in text, thus all endangered species are protected unexceptionally.
* exclusio unium (especially applies to exception clauses: if exception is not in text, it's excluded
* 2) Then looks at legislative history
* 1967 act had reasonableness exception
* 1973 act removed reasonableness exception---CJ Burger: this implies strong proenvironmentalist policy
* presumption of meaningful variation POWELL (DISSENT)Pragmatism
Congress has made statutory exception for dam construction
Congress continued to pass appropriations bill for dam construction even after passage of Endangered Species Act
Subsequent statutes trump previous statutes
* Critique: budgetary statutes do not say anything about law of conservation

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and endangered species
If violation of ESA were found, it would lead to widespread financial ruin and loss of jobs POSTSCRIPTCongress passes law allowing dam construction to go forward? example of public choice theory in action, b/c TVA/unions were able to successfully lobby Congress (concentrated benefits/distributed cost)? if case had gone the other way, environmentalists wouldn't have been as successful lobbying Congress Weber Dissent Rehnquist (soft textualism):
* Textualist arguments
* Plain meaningdictionary definitionMeaning of "discriminate": "to differentiate among groups? to single out any group, not just lesser powered one."
* Statutory context703(a)/(d): Protects blacks & whites from discrimination ("any individual for his race")
* Legislative history:
* Looks deals and colloquys on Senate floor
* Humphrey: Title VII does not permit and does not require use of racial quotas and discrimination

3) The New Textualism Not dominant interpretation, but because of New Textualism, everyone now looks text Pros of New Textualism (espoused by Scalia):

1. Formal legitimacy
* 1) Only text was enacted through constitutionally required process
* constitution only specifies 2 ways to make law-Art I SS7: H+S+P, or H+S+V+2/3 override. This strong implies separation of powers
* 2) Separation of powersif law is vague or defective, it is Congress's job to fix it
* 3) Democratic legitimacyjudges should follow rules set by Congress b/c it represents the people's will
* Scalia: Law, not intent of legislator, is what governs. Even an opinion poll of Congress would not provide formally legitimate interpretation of law.
* Weakness of this claimPublic Choice Theory Critique: Special Interest Legislation is not in the people's interest or supported by democratic will. Judges can be a check on special interest politics.

2. Greater objectivity + judicial restraint
* Eliminates cherrypicking aspect of intentionalist + purposivist analyses
* Strengths and weaknesses of this claim:
* Strengthlegislative history is indeterminate and subjective, and Ruger thinks that legislative intent is less objective than textualism
* Weakness The judge looks at the language and puts his own view of what an ordinary person would think it means on it.

3. Greater notice to populace, so that ordinary people know law

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