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State Tax Notes

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St. Tax Notes



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Opponents of textualism as an approach to statutory interpretation sometimes deride it as myopic. The textualist, those opponents contend, puts on blinders, narrowing the perhaps vast panorama of possible perspectives on meaning to a narrow slice of the whole. Modern textualists beg to differ. They view that criticism as reductionist and are often quick to distinguish textualism from mere literalism. Thus, the leading contemporary textualist jurist – U.S. Supreme Court Justice Antonin Scalia – cautions:

Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute .... [T]he good textualist is not a literalist.

Angle of vision is an important difference between textualism and literalism. Literalists may focus on one or a few words of a statute that are deemed to be central to the dispute before the court, locate a dictionary or comparable definition of that word or those words, and impose that meaning on the statute.

In contrast, contemporary textualism surveys a wider field. Context is crucial. It is context that gives meaning to individual words. Context includes at least the structure of the act that contains the critical word or words and other sections of that act. Among other things, it also may include other statutes that are of a piece with the statute at issue.

This technique of reading statutes together is often called “supertext.” Supertext and the related “consistent meaning” canon are the subjects of this installment of Interpretation Matters. Part I describes the supertext and consistent meaning approaches generally. Parts II and III illustrate those approaches' use in a recent state tax case: the decision of the Supreme Judicial Court of Massachusetts in CFM Buckley I North, LLC v. Board of Assessors, a strongly textualist decision. Part II describes the case and the “plain meaning” approach on which the court primarily relied. Part III shows the role of supertext and consistent meaning in the case and suggests that the court failed to fully develop that role.


© 2009 Steve R. Johnson


First published in State Tax Notes.

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