Textualism is alive and well in Alabama. This interpretive doctrine teaches that legal texts have objective meaning and that it is the job of judges to find and apply that meaning. Justice Antonin Scalia and lexicographer Bryan Garner distilled the textualist philosophy and outlined its key operating principles in their seminal treatise Reading Law. But textualist principles are not new—they are time-tested tools that have guided Americans for centuries, including right here in Alabama.

This article seeks to demystify textualism and show how it operates in this state. I begin with a brief introduction to textualism—what it is, where it comes from, and why it’s a foundational part of our legal system. Next, I describe how the court on which I serve, the Alabama Supreme Court, has relied on (or, in some cases, departed from) textualist principles. I then highlight some open questions and gray areas in our caselaw. My hope is that this article will help litigants, attorneys, scholars, and citizens understand how legal interpretation works in Alabama. More broadly, I hope that it inspires non-Alabamians to examine how textualist principles apply in their own states.

I. A Brief Introduction to Textualism

Textualism, in its simplest form, is the idea that a law’s text is the law.[1] This principle applies to all written law—constitutional and statutory alike.[2] When presented with a dispute over the meaning of written law, a textualist judge does not speculate about what legislators privately wanted the law to accomplish, nor does he ask what a more sensible law should have said. He asks only how the text would be best understood by a reasonable, well-informed person reading the text in its historical and linguistic context.

In holding that text itself constitutes the law, the doctrine of textualism stands in contrast to the competing doctrine of purposivism, which holds that the law is what legislators subjectively intended it to be,[3] and the various theories of judicial updating, which treat the written law as merely a starting point that can be revised by judges in a common-law fashion.[4] For textualists, a law’s meaning depends not on the wishes of legislators or the fiat of judges, but on the “objective indication” of the law’s words.[5]

But just because the textualist inquiry is objective does not mean it is easy. Textualist judges are not robots. We understand that legal interpretation requires more than plugging a string of words into a dictionary and running with the first results that come up. A written law, like any text, acquires meaning from its context, and that context is often rich with nuance. Weighing all the relevant contextual clues can be difficult, especially when those clues conflict with each other. Even textualist judges can disagree about how to prioritize competing clues and, consequently, about the best interpretation of a law.[6] But textualists are united in their convictions that legal texts have objective meaning,[7] that judges are capable of discerning that meaning, and that the meaning of a law’s text is the law.[8]

Textualism is often discussed alongside a related term: originalism. Judges and scholars do not always agree about what, if any, differences exist between these two terms. Some use the word “textualism” to apply only to statutes, while using “originalism” to describe the application of textualist principles to the federal Constitution.[9] Others describe originalism as a canon of textualist interpretation,[10] or else use the terms interchangeably.[11] Terminology aside, in practice both doctrines reflect the same underlying commitments: the belief that a law’s text is the law, and the belief that the meaning of a text is fixed at the time of its enactment.[12] In other words, the meaning of a law is its original public meaning, not its modern meaning.

The distinction between original meaning and modern meaning matters little for recent laws, but it can matter a great deal for older constitutional provisions and statutes whose language might have undergone linguistic drift.[13] Thus, the federal government’s constitutional obligation to protect against “domestic violence,” requires the national government to defend states from riots and insurrections within a state’s territory (the 18th-century meaning of “domestic violence”) but does not require it to prevent spousal abuse (the modern meaning).[14]

A. Textualism’s Origins and Development

Textualism is sometimes characterized (usually by its detractors) as an innovation, or even as the wholesale creation of Justices Antonin Scalia and Clarence Thomas. While it’s true that Justices Scalia and Thomas have done much to popularize textualism, the doctrine itself is not new.

As far back as Marbury v. Madison, Americans understood that the written text of the Constitution is law and that “courts, as well as other departments, are bound by that instrument” as written. It was, after all, Chief Justice Marshall’s conviction that “the written text” of a law is the law that “formed the core of the argument for the power of judicial review” embraced in Marbury.[15] As Marshall explained, the reason courts can (and must) refuse to enforce unconstitutional laws is not because the judicial branch somehow trumps the legislative branch—it emphatically does not[16]—but because both branches are jointly subordinate to a “supreme law”: the written Constitution.[17]

Marbury focused on the paramount importance of the written Constitution, but early American courts took a similarly text-focused approach to statutes. Justice Salmon P. Chase, riding circuit in 1800, captured the spirit of the age when he wrote:

By the rules, which are laid down in England for the construction of statutes, and the latitude which has been indulged in their application, the British Judges have assumed a legislative power . . . . Of those rules of construction, none can be more dangerous, than that, which distinguishing between the intent, and the words, of the legislature, declares, that a case not within the meaning of a statute, according to the opinion of the Judges, shall not be embraced in the operation of the statute, although it is clearly within the words. . . . For my part . . . I shall always deem it a duty to conform to the expressions of the legislature, to the letter of the statute, when free from ambiguity and doubt; without indulging a speculation, either upon the impolicy, or the hardship, of the law.[18]

Justice Chase was reminding the parties that courts lack authority to override a statute’s clear semantic meaning, even if the judge thinks doing so would avoid injustice or better conform the statute to its background policy goals.[19] Other members of the Founding generation, including Jefferson,[20] Madison,[21] Hamilton,[22] and Brutus (the most influential antifederalist),[23] echoed Chase’s sentiment when they warned against the dangers of atextual interpretation.

It is little surprise that the Founding generation, which had just fought a bloody revolution to establish a “government of laws, and not of men,”[24] viewed fidelity to written law as paramount. Experience had taught them that judges who view themselves as empowered to prioritize “the reasoning spirit” of laws “without being confined to the[ir] words or letter,” would inevitably “erode the principle of a government of limited and enumerated powers.”[25]

The Court continued to reflect that understanding well into the 19th century,[26] admonishing litigants in 1845:

[T]he judgment of the court cannot, in any degree, be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself.[27]

Justice Holmes similarly wrote, this time at the turn of the century:

We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used . . . . We do not inquire what the legislature meant; we ask only what the statute means.[28]

Courts, of course, have strayed from textualist principles from time to time, most famously during the Warren Court’s heyday of living constitutionalism.[29] But it is the deviation from textualism, not textualism itself, that is remarkable in our nation’s history.[30] Since the Warren Court era—thanks in large part to the influence of Justices Scalia and Thomas—textualism has been restored to its preeminent role.[31] As Justice Elena Kagan observed, “we’re all textualists now.”[32]

B. Why Textualism?

When I became a judge, I swore an oath to uphold the constitutions of the United States and Alabama.[33] Both constitutions refer to their own text as law and establish specific requirements for making additional laws.[34] According to those requirements, a statutory law is a text enacted by both branches of the legislature and signed by the executive (or enacted on reconsideration over the executive’s veto).[35] Under our constitutions, the unexpressed intentions of individual legislators are not law, and neither are the policy preferences of judges.[36] Only a document that has gone through the rigorous process of bicameralism and presentment (or constitutional amendment) qualifies.[37] The rule of bicameralism and presentment requires agreement between both branches of the legislature—and, usually, the executive—as to a specific set of words. A judge who casts aside those words in favor of something (such as an unexpressed intention or policy goal) has usurped legislative power by enforcing as “law” a rule that was not validly enacted. That usurpation contravenes our constitutions and the oath we judges swear to defend them. “Sneering at the promise in the oath is common in the academy,” as Judge Easterbrook once observed, but the oath “matters greatly to conscientious public officials.”[38] It matters to me, and it should matter to everyone who cares about how and by whom we are governed.

That, in my view, is reason enough to be a textualist. But there are practical reasons to be one too. First among them is that textualism safeguards predictability and stability in law. By anchoring the meaning of a text to the objective indication of its words at a fixed point in time, textualism constrains judges’ ability to “update” laws as they go along. For the textualist judge, a statute enacted in 1789 carries the same meaning today as it did two hundred years ago, and it will continue to carry that meaning until it is amended or repealed by the People’s elected representatives. This commitment to fixed meaning allows members of the public to govern themselves and structure their affairs without having to worry that next year’s judges will pull the rug out from under them.

In a similar vein, textualism promotes fair notice.[39] By focusing on what a reasonable citizen would understand the law to mean—rather than on legislators’ intentions or judges’ preferences—textualism ensures that the law is accessible to the people who are bound by it.

Textualism also promotes legislative competence. When judges refuse to fix policy problems for the legislature, the legislative branch has a stronger incentive to draft clear, coherent laws at the outset. In contrast, purposivism encourages strategic behavior by legislators (who know they can circumvent the legislative process by sprinkling their preferred language into committee reports, floor debates, or amicus briefs—even if that language never would have been able to garner a majority of votes), and judicial updating encourages legislative laziness (why take pains to avoid mistakes or think through additional contingencies if you know judges will do it for you?).

This is not to say that textualism is foolproof. Judges are human beings. Despite our best efforts, we make mistakes. Neither textualism nor any other interpretive approach can eliminate the possibility of judicial error. But textualism is far less error-prone than its two competitors.

Compare it, first, with judicial updating. While textualism confines judges to our narrow sphere of expertise and training (the interpretation and application of legal texts), judicial updating invites judges to opine on all sorts of abstract and far-reaching political, social, and economic questions outside the judicial wheelhouse. There’s a reason that the People elect legislators to formulate public policy, and there’s every reason to think they are better at it and better situated to be accountable for those choices than judges are.

Now consider purposivism. Unlike judicial updating, purposivism correctly recognizes that policy judgments belong to the legislative branch. But purposivism goes astray by misunderstanding what “the legislative branch” is and does. Purposivists assume that, since legislators have the power to make law, the law must be defined as whatever legislators wanted it to be, whether they express their desires in the text or not. Thus, for a purposivist, the meaning of a law’s text is only evidence of the law’s true meaning—and the text-based evidence can be overcome by legislative history or other subjective-intent evidence (such as amicus briefs filed on behalf of legislators) indicating that the legislators wanted the law to mean something other than what the law actually says.[40] As explained above, that view is wrong as a matter of first principles: our constitutions authorize the enactment of texts, not the enactment of intentions.[41] But even setting aside that objection, the subjective inquiry required by purposivism is inherently unreliable. That is so for several reasons.

For one thing, evidence of legislative purpose is highly vulnerable to strategic manipulation. A legislator who knows that courts will rely on legislators’ statements to extend (or limit) a statute beyond its text can easily mislead judges by asserting—either in the legislative record or in amicus briefs—that the proposed law enacts his policy preferences, even if he knows those preferences are not shared by his colleagues.

A deeper problem is that evidence of subjective intent is almost always non-representative. Even if we leave aside the possibility of strategic manipulation and assume that all statements made by individual legislators are uttered in good faith, the fact remains that each statement represents the views of only the legislator who made it.[42] Usually only a handful of legislators give statements on a bill, and there is no reason to assume that statements of those legislators represent the views of the median, or “swing,” legislator—i.e., the views of the legislator whose vote was necessary to ensure the law’s passage. If anything, the opposite is true: the legislators most likely to comment on a law are usually those who are either strongly opposed to, or strongly in favor of, its enactment.[43]

Subjective-intent evidence is non-representative in another way, too: it discounts the role of the executive branch. Even perfect evidence of legislators’ intent would tell us nothing about the intent of the executive, whose approval (absent legislative override of the executive’s veto) is often necessary for a bill to become law.[44] If we care about lawmakers’ intents, the executive’s intent should matter too, because she is an integral part of the lawmaking process.

And the executive’s veto is just one example of the many “veto gates” that are built into the legislative process.[45] There are numerous other ways in which the lawmaking process gives “political minorities extraordinary power to block legislation,”[46] such as committees’ drafting rules, the threat of filibuster, and “countless other procedural devices that temper unchecked majoritarianism.”[47] The ultimate statutory language that comes out of this process often does not represent a singular coherent purpose. The text, rather, is usually the product of an awkward but carefully crafted compromise. A judge who prioritizes the legislature’s perceived overall purpose above the ordinary semantic meaning of the enacted text risks undoing the legislative bargain that enabled the law’s enactment in the first place.[48]

I’ve saved the most technical problem with subjective-intent evidence for last. Even if we assume that a judge has perfect information about the mental states of everyone involved in the legislative process, subjective intent still would not be a reliable way of giving meaning to a law. That’s because there is no principled method judges can rely on for aggregating individual politicians’ subjective intentions into a unitary group intention. To see this problem in action, consider the following classic illustration, in which three legislators (1, 2, and 3) enact an ambiguous statute that has three plausible meanings (A, B, and C):

• Legislator 1 prefers A to B to C;
• Legislator 2 prefers B to C to A; and
• Legislator 3 prefers C to A to B.

Now imagine that you’re a purposivist judge trying to decide which meaning the legislature as a whole preferred. You’ll quickly run into a problem: In a contest between A and B, A wins 2-1; in a contest between B and C, B wins 2-1; but in a contest between C and A, C wins 2-1. The legislature prefers A to B, prefers B to C, yet—somehow!—prefers C to A. Even though each individual legislator has a rational set of preferences, aggregating those preferences into a unitary “group preference” or “legislative intention” yields an irrational result: an endless cycle with no winner.[49] It is impossible for a judge in such a scenario—even one who knows everything about every legislator’s mental state—to say which preference should control.[50]

The textualist judge faces no such problem. The textualist judge simply asks which of the possible meanings is the most objectively reasonable and then applies that meaning.[51] Discerning objective meaning isn’t always easy, but it is far less fraught than trying to peer into the heads of over a hundred legislators and aggregate their individual desires into a coherent whole.

II. Textualism in the Alabama Supreme Court

Since its earliest days, the Supreme Court of Alabama has endorsed textualist principles. But we have not always faithfully applied those principles, and we sometimes describe our interpretive approach in confusing or conflicting ways. A primary goal of this article is to clear up some of that confusion and—when it can’t be cleared up—to flag the open questions.

The simplest place to begin is with our modern court’s canonical statements of legal interpretation. Below are two typical examples. The first deals with constitutional interpretation, and the second with statutory interpretation. But, as you can see, the fundamental idea in each statement is the same. Start with the constitution:

[W]e look to the plain and commonly understood meaning of the terms used in [a constitutional] provision to discern its meaning. . . . The object of all construction is to ascertain and effectuate the intention of the people in the adoption of the constitution. The intention is collected from the words of the instrument, read, and interpreted in the light of its history.[52]

Now statutes:

The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute. . . . Words must be given their natural, ordinary, commonly understood meaning, and where plain language is used, the court is bound to interpret that language to mean exactly what it says.[53]

These formulations may seem simple enough at first glance, but they contain some nuances that can trip up unwary litigants. A few aspects of our interpretive approach, in particular, deserve unpacking.

A. The Role of “Intent”

The most common stumbling block for Alabama litigants involves our court’s use of the word “intent.” As the two quotations above illustrate, our caselaw routinely asserts that the goal of legal interpretation is to ascertain the law’s “intent,” which sometimes leads litigants to assume that our court endorses purposivism.[54] In fact, the opposite is true. As the quotes above go on to explain, the only “intent” Alabama courts are supposed to consider is the intent “manifested in the language” or “words” of the law.[55] That qualification is crucial. It means that the process of ascertaining a law’s “intent” is an objective exercise focused on the statute’s text, not a subjective one focused on lawmakers’ unexpressed goals or desires. Our court has spelled out that point many times over the centuries. As far back as 1890:

The office of construction is to ascertain what the language of an act means, and not what the Legislature may have intended. “Index animi sermo.”[56] The court knows nothing of the intention of an act, except from the words in which it is expressed, applied to the facts existing at the time; the meaning of the law being the law itself.[57]

And again in 2020:

The intention of the Legislature, to which effect must be given, is that expressed in the act, and the courts will not inquire into the motives which influenced the Legislature or individual members in voting for its passage, nor indeed as to the intention of the draftsman or of the Legislature so far as it has not been expressed in the act. So in ascertaining the meaning of an act the court will not be governed or influenced by the views or opinions of any or all of the members of the Legislature, or its legislative committees or any other person.[58]

The upshot here is that when our caselaw speaks about the “intent” of a law, it is usually describing the intent that a reasonable member of the public would ascribe to a reasonable lawmaker, based simply on reading the law’s text in context. Alabama courts do not—or, at least, are not supposed to—inquire about actual legislators’ subjective goals or purposes.[59] When a law’s objective semantic meaning diverges from the subjective intentions of the legislators who enacted it, only the former governs; the latter is irrelevant.[60] If the rule were otherwise, judges could decide legal disputes by taking legislative opinion polls and ignore enacted text entirely.[61]

Our court’s reliance on an objective concept of intent “track[s] a long tradition of discerning intent ‘solely on the basis of the words of the law,’” read objectively in light of their context, “and not by investigating any other source of information about the lawgiver’s purposes.”[62] Even so, I try to avoid the term “intent” when I write judicial opinions because I’m concerned it has become a source of confusion. Many modern-day lawyers—including some appellate lawyers—are unfamiliar with the technical, objective sense in which judges have long used that word, so they mistakenly equate any talk of “intent” with subjective intent or purposivism. That mistake leads them to argue for their preferred interpretation by appealing to legislators’ subjective goals, beliefs, or purposes (usually by arguing that a contrary result would amount to poor public policy and thus would be inconsistent with legislators’ desires) rather than by analyzing the statute’s objective semantic meaning. I think that judges could probably avoid most of that confusion if we spoke more in terms of “meaning” and less in terms of “intent.” “Meaning” is clearer,[63] more intuitive to most litigants, and serves as a useful reminder that legislators’ private intentions—even if they were knowable (which they usually aren’t[64])—are not law.

B. Interpreting Language As “Commonly Understood”

A second common pitfall involves the rule that judges must give a law’s words their “natural,” “ordinary,” or “commonly understood meaning.” Some litigants assume this rule requires a mechanistic or hyperliteral approach to legal interpretation. Again, that assumption is mistaken.

When judges say words should be given their “ordinary” meaning, we do not mean that each word in a text always takes its literal meaning or its most statistically-common meaning. We mean instead that words must be given the meaning that an ordinary reasonable person would ascribe to them after reading them in context. The reasonable person is not a robotic literalist, so a textualist cannot be either.[65] Textualists understand that words do not exist in a vacuum and that sometimes contextual clues reveal that a term carries an idiomatic or technical meaning as opposed to a more common meaning.

To see this principle in action, consider two scenarios. In the first scenario, the legislature passes a statute containing a single provision, which criminalizes “deliberate importation or introduction of new viruses into the State of Alabama.” Every court would hold that the text’s ordinary meaning prohibits people from intentionally bringing new infectious diseases into the state.

In the second scenario, the legislature enacts the same text, but this time as part of the Alabama Cybersecurity Act, in which every other provision deals with computer crimes. This time, every court (and every reasonable citizen) would recognize that the word “virus” carries its idiomatic meaning of “malicious software” rather than its more common meaning of “biological disease.” In both instances, the meaning of the law is clear to any reasonable reader, even though the meaning is different in the second scenario than in the first. Context does all the work.

It bears repeating here that the contextual inquiry is an objective one. Judges care about context because it affects how a reasonable reader would understand the text, not because it reveals the inner workings of legislators’ minds. To stick with the “virus” example: In the first scenario, where the no-new-viruses law was passed in isolation, courts would (correctly) refuse to consider evidence that legislators subjectively intended “virus” to mean “computer virus,” because the latter meaning is nonstandard and is unsupported by any contextual clues. Even if a survey showed that every single legislator privately intended “virus” to mean “computer virus” it would not matter—under our constitutions, intentions are not laws, only texts are.[66] Likewise, in the second scenario, courts would refuse to consider evidence indicating that legislators secretly wanted “virus” to mean “biological disease,” because no reasonable person would assume that the word “virus” carries its biological meaning when used in the context of a computer-crimes act. In both cases, the subjective intent of legislators is irrelevant. All that matters is how a reasonable reader would interpret the text in context. That is what our court means when it says that a text’s “normal” or “plain” meaning “‘may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens . . . .’”[67]

C. “Construction” and the Canons

Like all courts, the Alabama Supreme Court relies on canons of construction to aid our textual interpretation. A canon of construction is any “principle that guides the interpreter of a text.”[68] If that definition sounds broad, that’s because it is. Canons are rules of thumb that describe how people interpret texts, so every principle of interpretation is a canon.[69]

At a high level, canons of construction can be sorted into two buckets: descriptive and prescriptive. Descriptive canons, as their name suggests, help judges (indeed, all readers) ascertain the most plausible meaning of a text by describing how English text is ordinarily understood. Descriptive canons encompass all rules of grammar, usage, and context that help a reader understand what a text means.[70] Familiar examples include the general/specific canon (if there is a conflict between a general law and a specific law, the specific law prevails), the associated-words canon (words in a list bear on each other’s meaning), and the gender/number canon (abstract masculine pronouns include the feminine, abstract singular nouns include plural nouns, and vice versa). While there are many varieties of descriptive canons—“semantic,” “syntactic,” “contextual,” and so on—the ultimate point of each is the same: to describe how reasonable English speakers use and understand our language, including legal language.

Prescriptive canons are different. Prescriptive canons do not tell judges how to ascertain the most plausible meaning of a text; instead, they tell judges how to choose between multiple (already-ascertained) possible meanings. Some of the so-called substantive canons fall into this bucket,[71] with the most notable examples being the federal doctrine of Chevron deference,[72] and Alabama’s parallel doctrine that judges should defer to an agency’s interpretation of a statute that the agency is charged with enforcing,[73] even if the agency’s interpretation “may not appear as reasonable as some other interpretation.”[74]

Canons of construction undergird all interpretation, but not all canons are equally useful—some may be entirely illegitimate[75]—and no canon is absolute.[76] Litigants often go astray by treating canons as algorithms rather than guideposts.[77] It is not enough to recite a canon, assert its applicability, and declare the case won. The difficult work of legal interpretation lies in analyzing the canon’s relevance to the case at hand and the extent to which it is complemented—or contradicted—by other indicia of meaning.[78]

An example from one of our recent cases illustrates the point nicely. Alabama’s Workers’ Compensation Act provides that certain settlement agreements become irrevocable “unless within 60 days after the agreement is signed . . . the court on a finding of fraud, newly discovered evidence, or other good cause, [relieves] all parties of the effect of the agreement.”[79] The question before our court in Ex Parte ACIPCO[80] was whether a settlement contract could be set aside after the 60-day period based on a finding of mental incompetence. The insurance company thought not. In its view, mental incompetence is a form of “other good cause” for setting aside an agreement, and so is included within the types of claims that are subject to the 60-day deadline. The injured worker disagreed, pointing to a different provision of Alabama law, § 8-1-170, which says that contracts entered into by incompetents are void at the outset and cannot be enforced. The insurer responded by citing the “general/specific canon,” which provides that when two statutory provisions conflict, the specific provision trumps the general. The insurance company correctly identified and described the general/specific canon, but the parties—and the court—disagreed about how to apply that canon.

To start, there was disagreement over which statute is the “general” and which is the “specific.” The workers’ compensation statute is more specific with respect to workers’ compensation settlements, but the incompetency statute is more specific with respect to contracts by incompetent persons. In a case involving the effect of mental incompetency on a workers’ compensation settlement, which type of specificity matters more? The answer is not immediately obvious, and good arguments could be (and were) made on both sides.

Even assuming that the workers’ compensation statute is more specific—and therefore trumps the incompetency statute in the event of a conflict—that still leaves the question whether the two statutes really do conflict with each other. In her opinion for the court, Justice Sarah Hicks Stewart explained that there was no conflict because the incompetency statute and the workers’ compensation statute could be read harmoniously.[81] She pointed out that both statutes are compatible with the common-law doctrine that an “agreement” requires mutual assent: since mentally incompetent people lack capacity to assent, the injured worker’s settlement contract was never a legally valid “agreement” under either statute, and thus was not subject to the 60-day deadline under the workers’ compensation statute.[82] Justice William B. Sellers’s dissenting opinion took a different view about the definition of “agreement” and the applicability of the general-specific canon,[83] which goes to show that even after extensive briefing and argument, judges can disagree about whether and how canons apply. The case also illustrates why it’s crucial for litigants to know the canons and their limitations.

Ten years ago, Justice Scalia and the renowned linguist Bryan Garner wrote a book on textualist methodology called Reading Law, which highlights fifty-seven of the most important canons, provides prototypical examples of when they apply (or don’t), and gives advice about how to weigh them in the event of a conflict or tension between the canons. Perhaps most helpfully of all, Reading Law also refutes over a dozen false canons—interpretive rules that lawyers or judges often invoke but which lack any solid foundation.[84] Our court, along with the Supreme Court of the United States and courts within the Eleventh Circuit, has cited Reading Law numerous times.[85] It is a resource that I and many other jurists turn to when we are confronted with a difficult interpretive question.[86]

D. Alabama’s Plain-Meaning Rule: “Construe Only If Ambiguous”

All this discussion about canons of construction brings us to another feature of textualism in Alabama: the so-called “plain-meaning rule.” The plain-meaning rule is a canon created by judges, for judges. It essentially says that courts shouldn’t resort to “judicial construction” when interpreting a law if the law’s text is “unambiguous.”[87] Or, to put the same point differently, if the text’s meaning is “plain” then “there is no room for judicial construction.”[88]

The plain-meaning rule is often described as the most important feature of textualism in Alabama,[89] but the meaning of that rule is—well—not exactly plain.[90] Several features of the rule can make it difficult for litigants (and judges) to navigate.

To begin, the name of the rule itself is confusing. The “plain-meaning rule,” as our court has described it, is not the same thing as the principle, discussed in Part II.B, above, that words should be given their “plain” (as in, “natural” or “commonly understood”) meaning. Rather, according to our Court, the plain-meaning rule functions as a bar on certain types of outside sources by telling judges not to consider those sources unless the law’s “plain” (as in “clear” or “obvious”) meaning is ambiguous.[91] The rule effectively operates in Alabama as a two-step injunction:

Step 1: Read the text and decide—without engaging in “construction”—whether the meaning of the text is plain.

Step 2: If the meaning is plain, apply it. If not, resort to judicial “construction” to help illuminate its meaning.

That formulation raises two additional difficulties. The first is that the rule seems circular. Any act of ascribing meaning to words requires the reader to construe those words.[92] Telling a judge “don’t construe a statute unless it’s ambiguous,” is a bit like telling your accountant, “don’t check my math unless it’s wrong.” Neither command makes much sense. Just as your accountant can’t know whether your math is wrong until she’s checked it, a judge can’t know what a law means—let alone whether that meaning is “plain”—until he’s construed it.

The way our court has avoided this circularity is by tacitly drawing a distinction between “interpretation” on the one hand, and “construction,” on the other. Interpretation—that is, the bare act of looking at written words and intuiting their meaning—is something all people do automatically whenever we read language. But “construction” (at least for purposes of our court’s plain-meaning-rule cases) involves something extra—some additional work or some extra considerations on the part of the judge—which judges are supposed to avoid unless the text is ambiguous.

So what is the plus-factor that transforms (necessary) interpretation into (forbidden) construction? Our precedents do not give a clear answer. Some of our cases seem to indicate that a judge is engaged in forbidden “construction” whenever he consults any source other than the isolated statutory provision.[93] Other cases suggest that the plain-meaning rule prevents judges from engaging in policy considerations or consulting subjective-intent evidence unless the text is ambiguous, but that it does not prohibit judges from considering sources that shed light on the text’s objective semantic meaning (such as historical context, related statutory provisions, semantic canons of construction, and so on).[94] That inconsistency permeates our plain-meaning-rule jurisprudence.[95]

The second difficulty with the plain-meaning rule is that there is no agreed-upon threshold for determining whether a statute’s meaning is ambiguous.[96] Justice Brett Kavanaugh once observed that some judges “apply something approaching a 65-35 rule,” meaning that if the judges are moderately confident in their understanding of a statute’s meaning then they will declare the statute “clear and reject reliance on [post-interpretive] canons.”[97] Meanwhile, other judges “apply more of a 90-10 rule,” requiring a statute’s meaning to be overwhelmingly obvious before they are willing to “call it clear.”[98] As far as I can tell, our court has never explored this issue.

I discuss the plain-meaning rule more below, but for now the key takeaway is that the rule, whatever its drawbacks, is unavoidable in Alabama law. Litigants must be prepared to discuss the rule and its application anytime there’s a dispute about statutory or constitutional interpretation. Marc Ayers has published an excellent practitioner’s guide on the plain-meaning rule, in which he explains that Alabama litigants who want to rely on an external source or canon to advocate for their preferred interpretation of a text typically must convince the court either that: (1) the source or canon is a tool to determine the text’s plain meaning, rather than a gloss applied on top of (or in contravention to) that plain meaning; or (2) the text is ambiguous on its face; or (3) the text is incoherent or absurd on its face.[99] That guide was published almost two decades ago, but it is still—and, barring a major shift in our jurisprudence, will long remain—an important tool for navigating the plain-meaning rule in this state.

III. Ongoing Debates and Open Questions

No article about textualism in Alabama would be complete if it didn’t acknowledge the gaps and incongruities in our court’s jurisprudence. Below is a list of some particularly important unresolved questions about how our court does—or should—approach legal interpretation. My hope is that practitioners and scholars will keep these questions in mind and, in appropriate cases, suggest sensible answers.

A. What Is the Meaning of the Plain-Meaning Rule?

As just discussed, the plain-meaning rule simultaneously requires a judge to interpret a law (which he must do in order to assess whether it is “plain”) and prohibits him from construing that law (unless it is not “plain”). In order for the plain-meaning rule to make sense, then, there must be some dividing line between ordinary “interpretation,” which the rule requires, and “construction,” which it restricts. What is that line?

Our earliest cases suggest that the type of “construction” prohibited by the plain-meaning rule was only the type of construction that “enlarged” or “extended” a statute beyond its natural meaning.[100] On that early understanding of “construction,” then, the plain-meaning rule may have been just another way of reminding judges not to subordinate a statute’s objective semantic meaning to the legislature’s perceived background purpose (or to the judge’s own policy goals). In other words, “don’t make it up.”

“Don’t make it up” is as unobjectionable a principle as you’ll find in the law. Indeed, it captures the entire textualist philosophy in a nutshell. But our modern cases have expanded the plain-meaning rule beyond that simple command. Some of our modern cases seem to assume that the type of “construction” prohibited by the plain-meaning rule is the reliance on any source apart from the provision at issue read in isolation.[101] On that view, the plain-meaning rule prohibits judges from relying on “outside” evidence of semantic meaning, even if that outside evidence reveals that a law’s original public meaning is different from the meaning that modern judges would ascribe to the law after reading it in isolation. (I have doubts about whether that formulation is coherent in theory or workable in practice; I tend to agree with Judge Henry Friendly that it is “illogical to hold that a ‘plain meaning’ shuts off access to the very materials that might show it not to have been plain at all.”[102])

A competing line of cases suggests that the plain-meaning rule’s limitation on “construction” applies only to policy-oriented canons of construction[103]—also called “normative canons” or “substantive canons”[104]—and to reliance on intent-focused evidence,[105] but does not apply to semantic canons. For example, our court has suggested that it is always appropriate to consult related statutory provisions,[106] historical context,[107] and certain clear-statement canons.[108] Under this latter line of cases, then, the plain-meaning rule prohibits judges from entertaining hardship or policy arguments if the text is unambiguous, but it does not prohibit judges from consulting outside sources that shed light on the text’s semantic meaning.

In my own view, this latter line of cases makes more sense than the former. It is also more consistent with our earliest plain-meaning jurisprudence and with the separation-of-powers rationale that is often cited in support of the plain-meaning rule.[109] But it still leaves the question of whether it is ever appropriate for judges to decide cases based on either policy considerations or subjective-intent evidence. On the textualist account, policy determinations belong to the legislature alone—and that is true whether a law’s text is “ambiguous” or not.[110] Textualists recognize that legislative history and certain “substantive” canons[111] can be used to shed light on the social and linguistic conventions that prevailed at the time of a law’s enactment (because those conventions affect the law’s original public meaning).[112] But—at least on the typical textualist account[113]—those tools cannot be used to reach a result at odds with the most plausible semantic meaning of the text,[114] nor can they be used to supply meaning to a text that is incoherent.[115]

B. What Is a Principled Dividing Line Between “Plain Meaning” and “Ambiguity”?

By restricting reliance on certain canons to cases of “ambiguity,” the plain-meaning rule requires judges to make threshold determinations about whether a statute’s language is clear. How much clarity is enough? Our cases don’t say. Sometimes our court will try to articulate a standard of clarity by saying something like, “a statute is ambiguous when it is of doubtful meaning,”[116] but that just raises the same question in different form—how much doubt is enough?

The reality is that most laws that produce litigation are at least a little unclear—at least somewhat susceptible to multiple interpretations. This is not to say that all interpretations are equally plausible (they rarely are), just that colorable arguments can often be made on both sides. Litigation is expensive, and most people know better than to throw away a small fortune pursuing pie-in-the-sky legal theories. So if a little bit of unclarity were enough to render a text “not plain,” then there wouldn’t be much point to the plain-meaning rule because the ambiguity-dependent canons could be invoked in every non-frivolous case.

If a little bit of ambiguity is not enough, how much is? Should courts try to quantify the amount numerically, as Justice Kavanaugh did when he wrote that some judges apply a 90-10 rule while others apply something closer to 65-35?[117] Or perhaps there are other heuristics for assessing clarity, such as whether a competing interpretation has been adopted by other courts (if many other judges disagree about what a statute means, perhaps that in itself is proof that the meaning isn’t clear).

If the answer to these questions is that there’s no way of drawing a principled and useful dividing line between plain meaning and ambiguity, then perhaps—as Justice Kavanaugh[118] and others[119] have suggested—our court should do away with the plain-meaning rule and replace it with a simpler maxim: “If an outside source helps ascertain the original public meaning, consider it; if not, don’t.”

C. What Assumptions Should Judges Make About the “Reasonable” or “Ordinary” Reader?

I’ve now mentioned several times that textualism requires judges to ask themselves how a reasonable person would understand the law’s text. That raises an obvious question—what are the attributes of such a person? Is he the average person on the street? Probably not—our cases say he must be “reasonably well informed.”[120] Fair enough. But what does it mean for a reader to be reasonably well informed? Are judges to assume that a well-informed reader would have consulted a dictionary? Would have consulted case books? Our precedents do not give a clear answer. There is not even a consensus among textualists about this point.[121] But the answer matters a great deal to legal interpretation, particularly when it comes to provisions that employ technical terms whose significance might not be at all apparent to the average person.[122]

D. Are Certain Descriptive Canons Faulty?

I’ve already expressed skepticism about the legitimacy of normative canons and won’t rehash those concerns here.[123] The controversy surrounding normative canons is a philosophical one—a fundamental dispute about the scope of judicial power. Descriptive canons do not raise that sort of philosophical concern (everyone agrees that judges can consult objective indicia of meaning when interpreting texts), but they do raise empirical concerns. Because descriptive canons are supposed to be objective, they are only as useful as they are accurate. A rule telling judges “may is mandatory, and shall is permissive” would qualify as a descriptive canon (because it purports to describe how people use language), but it would be an inaccurate, worse-than-useless one.

In recent years, lawyers and linguists have questioned whether certain well-known descriptive canons accurately capture how people use language. A particular focus of criticism has been the series-qualifier canon, which purports to describe how postpositive modifiers normally attach to antecedents.[124] There may be reasons to doubt the empirical validity of other canons as well.[125] These empirical concerns are worth taking seriously. They also serve as a useful reminder that litigants must do their homework when they rely on a canon of construction because not all descriptive canons apply in all situations, and some descriptive canons might be so misguided that they should never apply at all.

E. What Is the Role of Stare Decisis?

Textualism does not always mesh neatly with stare decisis. Textualism teaches that the text of a law is the law. But the doctrine of stare decisis suggests that judicial precedent is also law—perhaps even a higher law. Robust versions of stare decisis, such as the one currently favored by the United States Supreme Court, allow judges to adhere to their past interpretation of enacted text even if the judge realizes that the prior interpretation is objectively wrong. This incongruity is what led Justice Scalia to declare that “stare decisis is not part of my [textualist] philosophy; it is a pragmatic exception to it.”[126] Justice Thomas, meanwhile, believes the exception is unwarranted: “If a prior decision demonstrably erred in interpreting such a law,” he has argued, “judges should exercise the judicial power—not perpetuate a usurpation of the legislative power—and correct the error. A contrary rule would permit judges to ‘substitute their own pleasure’ for the law.”[127]

My experience indicates that, in practice, the Alabama Supreme Court tends to adhere more closely to Justice Thomas’s approach to stare decisis, though we haven’t said so explicitly. Just last year, we overruled multiple precedents because litigants demonstrated that those precedents were “not supported by the text,”[128] “not plausible” readings of the text,[129] or impermissibly “substitute[d] our [court’s] judgment for that of the Legislature.”[130] Even so, some of our older decisions describe stare decisis as a doctrine of “great[] potency,” and have indicated that our court may choose to prioritize its own precedents over enacted text if it wishes.[131] These conflicting approaches have not been reconciled, so the key questions about the limits of stare decisis—“Is the doctrine legitimate with respect to cases interpreting statutory and constitutional text?[132] And if so, in what circumstances?”—call out for definitive resolution.

IV. Conclusion

In this article, I have provided an overview of textualism and done my best to explain how textualist principles have been applied by the Alabama Supreme Court. But for any questions this article may have answered, many more remain. I’ve flagged some of these open questions in Part III, above, but that section is not exhaustive. By thinking carefully about such questions and proposing sensible answers to them, practitioners and scholars can help courts refine legal interpretation in Alabama and, I hope, across the nation.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].