We are all textualists now, or so it has been claimed. But textualism, the practice of interpreting statutes solely by reference to their words, is often associated with conservative judicial outcomes. This is especially true when a focus on statutory text is combined with the belief that the meanings of words are fixed. This combination creates a sort of textualist originalism, in which judges interpret statutes in accordance with what the words of a statute meant to the relevant linguistic community at the time of a statute’s enactment.
In reaction to this conservative interpretive method, rejecting textualism but keeping an originalist commitment to fixed meanings provides one possible progressive response. Rather than focusing primarily on the statute’s language, one might instead look to the statute’s animating logic, purpose, or potential to create certain moral or economic outcomes. But rejecting a focus on statutory text is not the only progressive response to the originalist textualist. A second approach accepts that the meanings of statutes derive from text but denies that statutory text has a meaning that is fixed and unchanging. Often, advocates of this latter approach run into difficulty specifying how and when the meanings of words used in statutes change. And some might worry that any such account will leave judges too much room to determine that the meanings of a statute’s words have changed, thus enabling judges to express their policy preferences through the act of statutory interpretation.
This Comment addresses the second approach. It engages with a particular account in philosophy of language that views meanings as resulting from inferential connections among concepts. Inferentialism suggests that we can think of these inferential connections as constitutive of meaning and thus think of meaning as in a real sense responsive to the on-the-ground effects of using a particular word. As those effects change, as new inferential connections are recognized, so too change the meanings of words. This Comment argues that this repeated process of changed inferential significance provides us with an account of dynamic meaning that judges can take notice of but not impose themselves upon. It thus provides a methodology through which judges can read statutory text to mean something new or different without thereby merely expressing a political preference
"Inferentialism, Title VII, and Legal Concepts,"
University of Chicago Law Review: Vol. 85:
7, Article 2.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol85/iss7/2