Herbert W. Vaughan Memorial Lecture | Richard Ekins: Questioning the Dogmas of Textualism

Quick Overview

Richard Ekins critically analyzes textualism, arguing that the object of statutory interpretation is to infer the legislature's intended meaning, which the indispensable text serves to express, rather than equating the statutory text itself with the law, thereby challenging several characteristic "dogmas" of textualist thought.

Key Points: Ekins asserts that the first dogma, 'the text is the law,' is flawed because the law is a set of propositions changed by the enactment, and codification or drafting errors show the text does not always constitute the law. The second dogma, that 'the plain or ordinary meaning of the statutory text is its legal meaning,' misunderstands language use, as semantic content is not necessarily what the author intends to convey, requiring inference about what the words were used to convey. Ekins rejects the third dogma, 'context makes sense without intention,' stating context's significance lies in what it reveals about the author to frame inferences about intended meaning, not generating meaning independently. Challenging the fourth dogma, Ekins notes that bicameralism and presentment in the US, shared with Britain, do not necessitate that the plain meaning of text is the law; the focus must remain on honoring legislative power. The fifth dogma, that the 'relationship between Congress and the people makes plain meaning authoritative,' is refuted because how the people should understand legislation depends on how Congress legislates, not the other way around. Ekins finds the sixth dogma, that 'realism about the legislative process establishes the priority of plain meaning,' risks systematic misunderstanding and cynicism, underplaying Congress acting like a rational agent making coherent changes to the law. In discussing King v. Burwell, Ekins supports the majority view that tax credits should apply to federally established exchanges, arguing that denying legislative intent heightens the risk of misreading the statute, contrary to Justice Scalia's descent based on plain meaning.