The Inexorable Radicalization of Textualism

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Some scholars have recently
suggested that textualism, intentionalism, and purposivism are more
similar than is generally realized.  These new “accommodationist”
scholars claim either that the rival methods share the same goals or
even that the methods themselves have become indistinguishable. In
The Inexorable Radicalization of Textualism
, Professor Jonathan
Siegel argues that in fact, not only does textualism differ fundamentally
from intentionalism and purposivism, but the gap between them gets wider
with time. Textualism’s prime directive—the formalist axiom that
statutory text is the law—fundamentally distinguishes
textualism from other interpretive methods. Moreover, Siegel argues,
the formalist axiom has an expansionist logic that causes the gap between
textualism and other methods to grow wider as the logical implications
of the axiom are worked out. Siegel concludes that textualism inexorably
radicalizes itself as textualists gradually realize that their axiom
compels them to reject moderating influences, such as the “absurd
results exception,” that accommodationists claim bring interpretive
methods together. Intentionalism and purposivism, by contrast, are less
dogmatic and better able to absorb the best lessons of rival methods
without being untrue to their core principles. Siegel finds that textualism
worsens over time, whereas intentionalism and purposivism are better
able to improve themselves over time.

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