Author

We have entered the era dominated by a dogmatic textualism—albeit one that is fracturing, as illustrated by the three warring original public meaning opinions in the blockbuster sexual orientation case, Bostock v. Clayton County. This Article provides conceptual tools that allow lawyers and students to understand the deep analytical problems faced and created by the new textualism advanced by Justice Scalia and his heirs. The key is to think about choice of text—why one piece of text rather than another—and choice of context—what materials are relevant to confirm or clarify textual meaning. Professors Eskridge and Nourse apply these concepts to evaluate the new textualism’s asserted neutrality, predictability, and objectivity in its canonical cases, as well as in Bostock and other recent textual debates.

The authors find that textual gerrymandering—suppressing some relevant texts while picking apart others, as well as cherry-picking context—has been pervasive. Texts and contexts are chosen to achieve particular results—without any law-based justification. Further, this Article shows that, by adopting the seemingly benign “we are all textualists now” position, liberals as well as conservatives have avoided the key analytic questions and have contributed to the marginalization of the nation’s premier representative body, namely, Congress. Today, the Supreme Court asks how “ordinary” populist readers interpret language (the consumer economy of statutory interpretation) even as the Court rejects the production economy (the legislative authors’ meaning).

Without returning to discredited searches for ephemeral “legislative intent,” we propose a new focus on legislative evidence of meaning. In the spirit of Dean John F. Manning’s suggestion that purposivists have improved their approach by imposing text-based discipline, textualists can improve their approach to choice of text and choice of context by imposing the discipline of what we call “republican evidence”—evidence of how the legislative authors explained the statute to ordinary readers. A republic is defined by law based upon the people’s representatives; hence the name for our theory: “republican evidence.” This Article concludes by affirming the republican nature of Madisonian constitutional design and situating the Court’s assault on republican evidence as part of a larger crisis posed by populist movements to republican democracies today.

John A. Garver Professor of Jurisprudence, Yale Law School. B.A., 1973, Davidson College; M.A., 1974, Harvard University, J.D., 1978, Yale University.

Arguments against equal rights for gay men, lesbians, bisexuals, and transgendered people have shifted from, “Those are bad people who do sinful, sick acts,” to “A progay reform would promote homosexuality.” Professor Eskridge’s article presents a history of this rhetorical shift, tying it to the rise of a politics of preservation by traditionalists seeking to counter gay people’s politics of recognition. Eskridge also shows how modern antigay discourse has become sedimented, as arguments are layered on top of (but never displace) each other. Evaluating the various forms no promo homo arguments can take, he maintains that the most obvious versions are not plausible, and that the most plausible are not constitutional. This archaeology of no promo homo discourse has interesting ramifications for constitutional theory and doctrine. Among then, as Eskridge concludes, is the way in which the channeling function of law not only changes group rhetoric, but also group identity, and helps the state “manage” polarizing culture clashes.