Textualism, Pragmatic Enrichment, and Objective Communicative Content

Abstract

Textualist legal reasoning usually involves something like the following thesis: the legal content of a statute is the linguistic content that a reasonable member of the relevant audience would, knowing the context and conversational background, associate with the enactment. I offer a fairly straightforward argument for this thesis and proceed to apply the underlying pragmatic framework to two longstanding issues in the debate about textualism. First, I argue that the framework allows us to show that there is – contra critics – a principled distinction between the different textualist reasonings in the cases of Green v. Bock Laundry Machine Co. and United States v. Marshall. Second, I argue that the framework confers a non-negligible amount of plausibility on what John Perry has recently called conception-textualism – a view that he has pronounced 'confused, implausible, and unworkable.' I also briefly compare my linguistic argument for conception-textualism with Justice Scalia’s non-linguistic argument for it, the main premise of which concerns the constitutive function of constitutions.