TEXTUALISM'S MISTAKE.

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Date: Jan. 2022
From: Harvard Law Review(Vol. 135, Issue 3)
Publisher: Harvard Law Review Association
Document Type: Article
Length: 11,006 words
Lexile Measure: 1720L

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In 1920, seventeen-year-old Salvatore Eugene Scalia arrived in the United States from Italy with his family. (1) He picked up English quickly and decided to pursue a career in academia studying Romance languages. He got married, earned a master's degree, and had a son, the future Supreme Court Justice Antonin Scalia. (2) Salvatore (3) earned his Ph.D. in 1950 and became a professor at Brooklyn College, where he taught Italian, French, and Spanish. (4) He was known in his field for his scholarship on and translations of Italian poets, (5) but he also had a lasting impact on legal theory that has gone largely unacknowledged. Salvatore was a conduit between literary criticism and statutory interpretation, two fields that rarely intersect. Salvatore influenced his son's approach to reading a text, and his son in turn influenced a generation of judges and scholars in developing and refining textualism.

Salvatore was affected by the New Critics, and theirs was the set of critical beliefs that he seems to have imparted to his son. (6) New Criticism was the dominant American approach to literary criticism in the midtwentieth century, and its principles were well established over the decades in which it was theorized and taught in universities. (7) First, its adherents advocated for the method of close reading, by which they meant focusing on "'the work itself' and 'literature qua literature.'" (8) Second, they emphasized formalism over social context and other external factors in pursuit of objective, scientific analysis. (9) Finally, the kind of close reading that the New Critics espoused largely did away with authorial intention as a relevant area of inquiry. (10) As this Note will demonstrate, these tenets of New Criticism are reflected in many of Justice Scalia's core textualist convictions--notably his close attention to statutory text, his certainty in reaching definitive outcomes in interpretive questions, and his rejection of congressional intent as a relevant factor in statutory interpretation.

This connection between New Criticism and textualism would be nothing more than an interesting footnote in legal history were it not for the very different trajectories of the two movements. New Criticism began falling out of fashion in the late 1960s, as poststructuralism and postmodernism swept into the academy. (11) In 1967, Roland Barthes published his landmark essay The Death of the Author, which embraced the multiplicity of viewpoints resulting from dynamic interactions with other texts and the readers themselves. (12) On this view, the text is not a closed entity that can be reduced to the words on the page; rather, "[t]he Text is plural" and draws meaning from disparate other sources. (13) Barthes and other poststructuralists (14) also urged considerations of social and political context when considering a text, eschewing the narrower kinds of close reading that shut out external forces. While these theorists were not always directly responsive to New Criticism, their ideas can be read in concert: where the New Critics prized certainty and objectivity, the poststructuralists celebrated subjectivity and variability. These are profoundly different ways of looking...

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Gale Document Number: GALE|A690097708