Abstract
This Article urges that we not honor the textualist's currency. The argument derives from a simple, foundational proposition about the meaning of language: words take on determinate meaning only when considered within a context. Even when we hear words in isolation (i.e., out of context), we must hypothesize a context to make them fully intelligible. For example, the words "give her consideration" may mean something very different when coming from a lawyer, a letter of recommendation, or a pastor. In short, text and context are inseparable.
Based on this initial proposition, this Article makes three points. First, an ordinary conversation approach should play no role in statutory interpretation. As noted above, ordinary conversation is a poor model for understanding statutes because conversation assumes cooperation between speaker and listener, while legislative drafting assumes strategic behavior by the reader. Indeed, legislative drafting often yields word usages foreign to ordinary conversation. Thus, any conversation we hypothesize will provide an inapt context for understanding words in a statute.
Second, even if ordinary conversation were probative of statutory meaning, such an approach would violate the rule of law. Typically, an ordinary conversation argument claims that a word usage found in a hypothetical conversation represents the "ordinary" or "usual" meaning of that word. Yet, we have no way to verify this claim. Because an ordinary meaning approach is purely descriptive -- it asserts what a word's ordinary usage is, not what it ought to be -- there can be no normative basis for the claim. And as a descriptive matter, there is no good way to prove that one word usage is more "ordinary" or "usual" than another. In the end, the claim reduces to the decision maker's naked, subjective impression about the ordinariness of a word's usage. We are left with the rule of one individual's unexplained will, not the rule of law.
Third, judges ought to consult the context of a statute's creation -- i.e., the legislative process -- instead of hypothesizing an irrelevant conversation. Because texts are unique creations of their contexts, statutes first gain meaning within the context that gave them life: the give and take of the legislative process. Interpreting the statute in light of a different context, such as a hypothetical conversation, would effectively invent a new text. To remain true to the statute that was Congress's handiwork, we must read it within the context of the legislative process, which is reflected in the statute's legislative history.