Welcome to Unit 2 on Theories of Judicial Interpretation. The judiciary's rule dates back to a case called Marbury v. Madison from 1803, and there the Supreme Court clarified that it is the province and duty of the judicial department to say what the law is. That means to interpret the statutes that Congress wrote.
And judges have over time adopted different theories of statutory interpretation. We're going to briefly talk about four of these theories, textualism, intentionalism, purposivism, and pragmatism. We'll start with textualists.
Textualists are really focused on the plain meaning canon, the text of the statute as their name suggests, and the ordinary meaning of words. There are also, some of them at least, are very interested in the meaning of the words at the time the statute was enacted rather than in the present time. They tend to follow a more linear or hierarchical approach in applying the canons, and they focus primarily on the intrinsic sources.
So the text of the statute and the linguistic canons we talked about. But there are really three types of textualists. Soft textualists are the most flexible.
So, They see the text as the primary but not the exclusive source of meaning. And they don't even need to find language ambiguous to consider non-textual sources. Moderate textualists are sort of in the middle.
So they still focus on plain meaning and they find that it controls, plain meaning controls, but they would need ambiguity to look beyond plain meaning. And then we have strict textualists, who are the least flexible. Like moderate textualists, they need ambiguity to look beyond plain meaning, but they refuse to consider certain non-intrinsic sources altogether. So, for example, many strict textuals will just refuse to consider legislative history at all.
And that's, for example, like Justice Scalia, whose position on the extreme end was shown in a prior slide. Then we have intentionalists and purposivists. What they have in common is they are both very interested in the purpose of the statute and congressional intent, but they have some differences.
So, intentionalists focus on general intent. That means the overall purpose of the statute as a whole. They begin with the text but don't end there, and they think it's okay for judges to interpret statutes in situations that the enacting legislature never contemplated, which permits some more flexibility. Purposivists, on the other hand, focus on specific intent. So they will look at the specific part of the statute at issue and ask, what did Congress mean?
What did it intend in writing that part of the statute? So the difference between general intent and specific intent is that general intent is focused on the purpose of the whole statute, the entirety of the statute, where specific intent is focused on the purpose of a particular provision of the statute. Purposivists, like generalists, will begin with the text but don't end there. And they really want to ensure that judges implement the enacting legislature's intent and not their own policy preferences. So lastly, we have pragmatists.
And pragmatists believe that judges should take into account real world consequences and societal understanding in interpreting an ambiguous statutory provision. They reject the notion that the statute has one objectively correct meaning, and actually think that statutory text has no fixed meaning until it's interpreted. So this concludes our brief discussion of four theories of statutory interpretation, and it concludes week two of the class.