Textualism and the Equity of the Statute

Abstract

Recent scholarship has sought to challenge textualist interpretive methods by reviving ancient English doctrine of equity of statute-a doctrine that treated atexual, purposive interpretation as an inherent attribute of judicial authority. In particular, modern proponents contend that this common law doctrine, rather than currently prevailing faithful agent theory, more accurately reflects original understanding of the judicial Power of United States. In this Article, Professor Manning argues that English equity of statute doctrine failed to survive structural innovations that differentiated U.S. Constitution from its English common law ancestry. He further contends that while early American history is somewhat mixed, faithful agent theory came to be dominant federal interpretive theory quite early in republic. Finally, Professor Manning argues that, contrary to critics of textualism, current rejection of equity of statute will not lead to rigid and literal interpretive methods.