Jonathan R. Siegel

Professor of Law

George Washington University

158 U. Pa. L. Rev. 117 (2009)

A new wave of scholarship in statutory interpretation asserts that textualism, intentionalism, and purposivism are not that different. The new “accommodationist” scholars claim that the rival methods have moderated themselves to the point where they have converged.

In fact, this Article shows, textualism differs fundamentally from intentionalism and purposivism, and the gap between them will only get wider with time. A two-part mechanism produces this result: First, textualism’s prime directive—the formalist axiom that statutory text is the law—fundamentally distinguishes textualism from other interpretive methods. Second, the formalist axiom has an inexorable, expansionist logic that causes the gap between textualism and other methods to grow wider as the logical implications of the axiom are worked out. 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.

Textualism is therefore doomed to become more radical and unworkable as the implications of its formalist axiom become better understood. Nor can textualism abandon its axiom, because, if it did, it would cease to be textualism. Intentionalism and purposivism, by contrast, are less dogmatic and are better positioned to absorb the best lessons of rival methods without being untrue to their core principles. Intentionalism and purposivism will, therefore, ultimately win the interpretation wars.