What Is Law? A Search for Legal Meaning and Good Judging Under a Textualist Lenst ROGER COLINVAUX* "[J]udges in a real sense 'make' law.... [T]hey make it as judges make it, which is to say as though they were 'finding' it-discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be."' INTRODUCTION What is the law? In the above quotation, Justice Scalia does not reveal what the law is. He does, however, supply us with an insight into what the legal process is like. We can infer that the actors who decree today's and tomorrow's law come from a legislature that makes law as legislators make it. Generally, for the United States Congress, this involves an extensive bout within committees of both the House of Representatives and the Senate, a favorable majority vote on the floors of each respective body (perhaps after a conference committee irons out the differences between the two), and presentation to the President for signature. A bill that survives these essential formalities becomes law, or more formally, a statute. Presumably, judges "find" the law leftover after the legislative wheels stop spinning. But what is there to find? After all, there is a statute. The judge charged with interpreting it and the agency charged with enforcing it each have access to a copy. Clearly there is more to finding law than being able to locate and read a statute. The statute has legal effect because it passed the formal requirements for statutes, but the law that a statute stands for is somewhere to be found. The question then is how do judges find law? Statutory interpretation is the subject that offers an answer. There are numerous ways to interpret a statute. A judge charged with the task of finding law may adhere to a multitude of labels: purposivism, intentionalism, textualism, structural textualism, or even hypertextualism. A purposivist judge finds law by measuring a statute's language against the statute's purpose. For the task of discerning purpose, legislative history is a common choice. An intentionalist finds law by reconstructing congressional intent, also frequently relying on legislative history. Intentionalism differs from purposivism because a statute can be interpreted to have a broader purpose beyond the one intended. A textualist finds law by defining the words of a statute in accord with their ordinary or plain meaning. Dictionaries and canons of construction are often helpful tools in this pursuit. A structural textualist finds law by examining the words not only in their ordinary sense, but also by looking at the structure of the t Q 1997 by Roger Colinvaux. * J.D. Candidate, IndianaUniversity School of Law-Bloomington, 1997; M.Litt, Oxford University, 1994; B.A., Connecticut College, 1990. I. James B. Beam Distilling Co. v. Georgia, 501 U.S. 525, 549 (1991) (Scalia, J., concurring) (emphasis in original). 1134 INDIANA LA W JOURNAL [Vol. 72:1133 statute as a whole, for example, by asking whether one definition is more consistent with the surrounding terms or provisions than another definition, or is consistent with the statute's stated purpose. Both of these forms of textualism are dependent on the "internal context" or rules of the statute, including the statute's grammar; this in contrast to the purposivist approach which regularly relies on "external context"-for example, the intent of the legislature. Finally, a hypertextualist finds law by utilizing the tools of the other forms of textualism, as well as by resorting to analysis of other statutes, as if statutes in general were a reference guide or a kind of dictionary for the meaning of legal words. For instance, an unclear usage of a word in one statute may become clear by comparing how the word is used in another statute. For the hypertextualist, statutes as such provide a background for interpretation. Despite the terms "structural textualism" and "hypertextualism," there are really only two major strands of thought on interpretive questions: that between the textualist (which will be deemed to include both structural textualism and hypertextualism) and the purposivist. The dividing line between them is that of internal and external context. While there are occasions where a purposivist might rely solely on external context, ignoring a clear statutory text,2 generally speaking, for textualists and purposivists alike, the text is a solid and legitimate focus. The difference between the two schools of thought is that for textualists the text should also be the only focus. This is so because, textualists claim, the consequences of a purposivist, external context approach to interpretation for our constitutional democracy and for the rule of law are grave.? Justice Scalia is an outspoken proponent of the textualist view and also of the dangers of purposivism, an approach he considers erroneous, particularly when combined with judicial rummages through legislative history.4 Not coincidentally, since Justice Scalia's appointment to the Court, the legal academy resuscitated its interest in issues of statutory interpretation.5 Today there is an 2. This is sometimes the case, particularly if a statute's plain or literal meaning leads to an absurd result. The "Golden Rule" of statutory interpretation is that the ordinary or literal meaning of a text may be overlooked if it would lead to an absurd result. Justice Scalia describes the rule as one of the traditional tools of statutory interpretation, one which involves judicial choice over competing policies. See Antonin Scalia, Judicial Deference to Administrative Interpretationsof Law, 1989 DUKE L.J. 511. For examples of Justice Scalia's willingness to use the Golden Rule, see his concurrences in Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989) and K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 324 (1988). 3. Concerns about using non-textual sources in judicial interpretation form the center of the normative component of textualism. The argument is that a judge should not rely on external context because doing so will result in a form ofjudicial lawmaking that violates the separation of powers. 4. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407 (1995) (Scalia, J., dissenting); City of Chicago v. Environmental Defense Fund, 511 U.S. 328 (1994); Landgrafv. USI Film Prods., 511 U.S. 244 (1994); Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597 (1991) (Scalia, J., concurring); H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989) (Scalia, J., concurring). 5. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REv. 621 (1990); Daniel A. Farber & Philip P. Frickey, Legislative Intent and Public Choice, 74 VA. L. REV. 423 (1988); Nicholas S. Zeppos, Justice Scalia's Textualism: The "New" New Legal Process, 12 1997] WHAT IS LAW?1 1135 abundance of scholarly literature in the field6 and prominent judges have joined the textualist-purposivist debate.7 Despite the rhetoric about the importance of getting statutory (or for that matter, constitutional) meaning precisely right, the purposivist-textualist debate is one that could strike some readers as more appropriate for philosophers than legal professionals or judges, especially when books and articles retreat into the abstract pontifications of Gadamer, Wittgenstein, and Schleiermacher. Furthermore, the insistent and vehement viewpoints defending one approach over another prompt a reader to ask how advocates of one approach or another can take themselves seriously. Textualism, for example, has some obvious practical weaknesses. Problems with a plain meaning rule seem so self-evident as to prompt the query: why bother, either with the rule, or with the critique? And yet the Justices do bother. They cite plain meaning with increasing frequency.8 They wield dictionaries at a laughable rate.9 The circus over the meaning of words forces a Court watcher to ask whether the question of meaning has become too complicated and modem day statutes too technical and detailed to trust that nine CARDozo L. REv. 1597 (1991). 6. See Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLuM. L. REv. 749 (1995); William D. Popkin, An "Internal" Critique of Justice Scalia's Theory of Statutory Interpretation,76 MINN. L. REv. 1133 (1992); Muriel Morisey Spence, The Sleeping Giant: Textualism as Power Struggle, 67 S. CAL. L. REV. 585 (1994); George H. Taylor, Structural Textualism, 75 B.U. L. REv. 321 (1995). 7. For example, Judge Easterbrook of the Seventh Circuit is a textualist. For a summary of his views, see Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. &PU. POL'Y 61 (1994). Judge Wald of the D.C. Circuit, however, is critical of the textualist structural approach. See Patricia M. Wald, The Sizzling Sleeper: The Use of Legislative History in ConstruingStatutes in the 1988-89 Term of the United States Supreme Court, 39 AM. U. L. REv. 277 (1990). Justice (then Judge) Breyer noted the decreasing use of legislative history in Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REv. 845 (1992). Chief Judge Mikva of the D.C. Circuit argued against original intent in Abner J. Mikva, Statutory Interpretation: Getting the Law to Be Less Common, 50 OHIO ST. L.J. 979 (1990). Judge Posner of the Seventh Circuit set out a theory of imaginative reconstruction in RICHARD A. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988). 8. In the 1993 spring term, over one in five cases decided with an opinion involved a dispute over plain meaning. For a list of the cases, see Taylor, supra note 6, at 356 n.162.