# Herbert W. Vaughan Memorial Lecture | Richard Ekins: Questioning the Dogmas of Textualism Source: https://www.youtube.com/watch?v=sbgrNeJxx2c Recap page: https://rapidrecap.app/video/sbgrNeJxx2c Generated: 2025-11-25T21:33:24.153+00:00 --- ## 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. **Context:** Richard Ekins, Professor of Law at Oxford and Notre Dame, delivered the Herbert W. Vaughan Memorial Lecture at Harvard Law School, focusing on critically examining the core tenets, or 'dogmas,' of textualism, the leading approach to statutory interpretation in the United States. Ekins frames his critique against the backdrop of Justice Kagan's observation that 'we are all textualists now,' suggesting this consensus may be unstable, and positions his own view within the common law tradition, favoring the inference of legislative intent controlled by the indispensable statutory text. ## Detailed Analysis Professor Ekins systematically dismantles ten characteristic dogmas of textualism. He begins by rejecting the claim that 'the text is the law,' explaining that law is a set of propositions changed by the act of enactment, and the text is merely the canonical formulation of that lawmaking act, not the law itself; drafting errors illustrate this difference. Next, he attacks the 'plain or ordinary meaning' dogma, arguing that semantic content differs from intended meaning, and the reasonable reader must infer the author's intent, warning that isolating the reader from the author risks remaking the statute in the judge's own image. Ekins contends context only makes sense insofar as it reveals authorial intention, refuting the idea that context generates meaning independently. He challenges constitutional arguments for textualism by noting similar legislative processes in Britain do not mandate plain meaning, and dismisses the 'people's understanding' argument as bootstrapping, asserting the people are entitled to the law Congress intended to make. Furthermore, Ekins critiques textualist 'realism' about the legislative process as cynicism that misrepresents Congress as incapable of coherent action. He argues against the dogma that 'there is no legislative intent,' citing the King v. Burwell case where adherence to text alone led to a less plausible reading of Congress's manifest legislative intention than the majority's interpretation. Ekins concludes that textualism mistakenly prioritizes restraining judges (formalism of method) over honoring authoritative lawmaking acts (formalism of authority), and that the text alone is insufficient because interpretation relies on a complex interpretive regime and substantive canons. Despite his sharp critique, Ekins affirms that the text is extremely important and judges must be alert to its detail, suggesting his intent-focused approach aligns with a 'flexible textualism' that grounds inferences in text and context. ### Critique of Textualist Dogmas - The text is the law is rejected because law is a set of propositions, not just text - Plain meaning misunderstands language use where semantic content is not always intended meaning - Context requires intention to be meaningful - Constitutional structure does not mandate plain meaning adherence. ### Legislative Intent vs. Text - Ekins's view centers on inferring the intended meaning of the legislature, which controls, with text being indispensable evidence - He supports the King v. Burwell majority's outcome, suggesting denying legislative intent heightens misreading risk, contrary to Scalia's dissent. ### Nature of Legislative Process - Textualist realism is criticized as cynicism that ignores Congress acting as a rational agent - The dogma that legislative intent is undiscoverable or redundant misrepresents the capacity of Congress to form and act on joint intentions. ### Judicial Role and Restraint - The goal should be formalism of authority—congruence with lawmaking acts—rather than formalism of method, which only seeks to be seen restraining judges - Evaluating consequences, such as absurdity, is relevant to inferring intent, countering the 'hard-hearted' interpreter dogma. ### Role of Interpretation Rules - The text alone is insufficient because legal meaning depends on intersection with other legal rules, including substantive canons like constitutional avoidance, which temper textual meaning.