Congressional Outsiders and Textualist Non Sequitur

In Congressional Insiders and Outsiders, Amy Coney Barrett distinguished between “congressional insider” approaches like process-based theories (i.e., drawing interpretive resources from Congress’s procedures and practices) and “congressional outsider” approaches like textualism (i.e., drawing interpretive resources exclusively from ordinary meaning of the statutory text). According to Barrett, textualists would find an “outsider” approach normatively superior because courts should be faithful agents of the people, who do not usually have inside knowledge of Congress. This embodies a distinctive type of defense for textualism, which I call “outsider textualism,” based not on statutory text as the compromise drawn in Congress, but instead on a concern for persons subject to the law. I argue that this textualist argument nevertheless fails because it made two logical leaps: One, by assuming an “outsider” approach always equals faithful agency to the people; Two, by assuming that an “outsider” approach—if it does equal faithful agency to the people—could justify textualism. More specifically, the outsider perspective does not generally follow from “faithful agency” to the people because, for example, the people could legitimately expect administrative agencies to comply with a legislative command that is not accessible to an outsider; and even if the outsider perspective is justified in contexts such as criminal law, it does not follow that textualist understanding is fairly expected of an outsider criminal defendant. In other words, outsider textualism illicitly relies on the appeal of “fair notice” canons as a springboard for textualism in general. Instead of blanket justifying textualism, what faithful agency to the people requires might inevitably be a substantive, value-laden question dependent on our conceptions of justice.