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The Legacy of Anglo-American Textualism

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The Legacy of Anglo-American Textualism The Legacy of Anglo-American Textualism By John James Magyar, BA, JD, LLM St. Edmund’s College, University of Cambridge 6 November 2018 This dissertation is submitted for the degree of Doctor of Philosophy The Legacy of Anglo-American Textualism by John J. Magyar Summary: Textualism is the doctrine of statutory interpretation propounded by a small group of US federal court judges, including the late Justice Antonin Scalia. Whilst the doctrine has attracted a great deal of scholarly attention, few have considered its historical development. In this dissertation, textualism is analysed in order to uncover the core principles and sets of rules from which it is comprised. Then, the development of these principles and sets of rules is traced back through the treatises on statutory interpretation published in England and America in the Victorian era, which were well-known to and frequently cited by Justice Scalia. Textualism is revealed to be an Anglo-American doctrine that emerged over the course of the nineteenth century; and it was made explicit in the treatises on statutory interpretation, which developed via a transatlantic scholarly dialogue. The doctrine fell out of favour in the US as the nineteenth century drew to a close; and around the same time, the rule prohibiting recourse to legislative history, a core feature of textualism, became subject to significant judicial challenge in England. The matter was resolved by a landmark decision in 1906, after which time the doctrine became firmly entrenched in England until approximately the 1980s. Textualism’s long tenure in England demonstrates how a doctrinal common law theory typical of the late Victorian era persisted for more than a century despite variations in judicial application of the rules from which the doctrine is comprised, criticism from within the legal community, and significant social change over time. The modern US revival of this doctrine is further testament to textualism’s tenacity. Whilst many scholars have found the doctrine to be problematic, it has remained attractive to common law judges from the time of its emergence in the middle of the nineteenth century through to the present. This is so because textualism was developed and refined through doctrinal legal scholarship, and as a result, it is consistent with traditional common law modes of reasoning, and it is tailor-made to meet the needs of judges deciding cases. i Preface This dissertation is the result of my own work and includes nothing which is the outcome of work done in collaboration. It is not substantially the same as any that I have submitted, or, is being concurrently submitted for a degree or diploma or other qualification at the University of Cambridge or any other University or similar institution. No substantial part of my dissertation has already been submitted, or, is being concurrently submitted for any such degree, diploma or other qualification at the University of Cambridge or any other University or similar institution. It does not exceed the prescribed word limit for the relevant Degree Committee. I am grateful for the assistance I have received from several people in a variety of capacities while researching and writing this dissertation. This includes Dr. Roderick Munday, my first year supervisor, and Professor John Bell, who supervised the remainder of the work towards this dissertation. Both provided encouragement, pointed to excellent source materials, and provided feedback in a timely and efficient manner to help me develop and refine my ideas. I am also grateful to professors Audrey Guinchard, William Eskridge Jr, and Jeffrey Barnes. All of them took an interest in my work and provided invaluable insights into various chapters. I am grateful to Dr Dominic de Cogan for his help with tax law issues and Professor Tony Smith for more general insights into the relevant literature of the twentieth century. I am also grateful for the painstaking assistance with proof-reading that was provided by my late father, William Magyar, as well as James Parish, Abhishikta Mallick, Lisa Di Valentino, Matthew Kennedy and Melanie DeSmith. Carsten Garratt and Helen Goff deserve my thanks for their long, gruelling hours of assistance with corrections. I know not what compelled them to volunteer for such a punishing task, but they have my deepest sympathy and gratitude. I owe special thanks to the library staff at the Squire Law Library, and in particular, to Kate Faulkner and Josephine Bailey, for their enthusiastic assistance with sources. I also owe thanks to all of my fellow PhD students and the faculty at the University of Cambridge. It takes a community to raise a child, and it takes a community to write a dissertation. Finally, I am so very thankful for the encouragement and support that Professor Randal Graham provided during my LLM and PhD research. It was his suggestion that I apply to the PhD programme at Cambridge—something that had I assumed was beyond my reach. ii Contents Statutes United Kingdom:.................................................................................................................vi United States:....................................................................................................................viii Other Jurisdictions:.............................................................................................................ix Cases United Kingdom:..................................................................................................................x United States:....................................................................................................................xix Other Jurisdictions:...........................................................................................................xxv Chapter 1: What is Textualism? 1.1 Introduction.........................................................................................................................1 1.2 The Nature of Textualism....................................................................................................3 1.3 Structure and Methodology.................................................................................................5 1.4 The Core Components of Textualism..................................................................................8 1.4.1 The Faithful Agent View of Judging.....................................................................9 1.4.2 The Separation of Powers....................................................................................11 1.4.3 The Exclusionary Rule........................................................................................13 1.4.4 The Sophisticated Plain Meaning Approach to Statutory Text............................17 1.5 The Four Pillars of Textualism..........................................................................................20 1.6 The Limits of Coherence...................................................................................................24 1.7 Challenges to the Four Criteria.........................................................................................30 1.7.1 Originalism..........................................................................................................30 1.7.2 The Preoccupation with Activist Judging............................................................32 1.7.3 Fidelity to the Text...............................................................................................33 1.7.4 Textualism and the Realist Critique....................................................................37 1.6 Conclusion.........................................................................................................................41 Chapter 2: The Roots of Textualism 2.1 Introduction.......................................................................................................................43 2.2 The Relationship Between Modern American Textualism and the Treatise on Statutory Interpretation.....................................................................................................................45 2.2 The Treatises on Statutory Interpretation Published in the Nineteenth Century...............47 2.4 Reading Law: Another Iteration........................................................................................57 2.5 Conclusion.........................................................................................................................59 iii Chapter 3: The Development of the Faithful Agent View of Judging, the Separation of Powers and the Sophisticated Plain Meaning Approach to Text 3.1 Introduction.......................................................................................................................60 3.2 The Judge as Faithful Agent..............................................................................................60 3.3 The Role of the Judge in the Nineteenth-century Treatises...............................................64 3.4 The Separation of Powers..................................................................................................67 3.5 The Sophisticated Plain Meaning Approach to Statutory Text.........................................71 3.6 Conclusion.........................................................................................................................79 Chapter 4: The Exclusionary Rule 4.1 Introduction.......................................................................................................................80
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