Academic journal article Harvard Law Review

Textualism as Fair Notice

Academic journal article Harvard Law Review

Textualism as Fair Notice

Article excerpt

Perhaps the most intuitive and straightforward argument for textualism is that it promotes fair notice of the law. Textualism's emphasis on the primacy of the statutory text and its use of objective tools of construction suggest that much of the methodology is motivated by the long-recognized requirement that laws are legitimately enforced only when their subjects have fair notice of them. Yet, textualist judges and scholars have largely ignored this argument--rarely do they give more than a passing nod to fair notice. Instead, arguments for textualism tend to focus on the legislative process, democratic legitimacy, and judicial power--a focus that is natural and perhaps only reflects the classic preoccupation with the countermajoritarian difficulty. (1)

To be sure, few textualists would disagree that fair notice is an element of legal legitimacy. Indeed, most would readily recognize the importance of fair notice to the rule of law. Yet, the implications of the concept as an argument for textualism have never been fully theorized within the textualist literature. In fact, most interpretive methodologies ignore this valuable ground for support. (2) This oversight is a serious lost opportunity for textualism because fair notice squarely aligns with textualism's goal of approximating how the average, reasonable citizen would interpret a statute. Thus, fair notice deserves much more thorough treatment within the textualist literature.

This Note attempts to round out the textualist literature by more fully articulating the fair notice argument for textualism. To lay the groundwork for the argument, this Note first defines and articulates the fair notice principle, largely by reference to its development through Western legal culture. It then examines the existing arguments for textualism and the legal values they emphasize. In particular, it identifies the following three traditional arguments for textualism: (1) public choice, (2) judicial restraint, and (3) judicial competence. Upon demonstrating that these three arguments fail to account for the fair notice principle, this Note articulates the fair notice argument for textualism. Finally, this Note integrates this fair notice argument with the traditional arguments to illustrate how, together, they provide a convincing and comprehensive argument for textualism.


From the inception of Western culture, fair notice has been recognized as an essential element of the rule of law. Most importantly, the American Founders and the Enlightenment thinkers who influenced them viewed fair notice as a requirement for fairness, legitimacy, and social utility. This concern for fair notice only increased as Anglo-American law developed through the nineteenth and twentieth centuries. As a result, fair notice is a crucial element of the modern rule of law. This Part will articulate the modern concept of fair notice by looking to its development in Western legal culture in general and American legal culture in particular. This account will illuminate the three core requirements of fair notice: the government must publicize its duly enacted laws; citizens must make themselves aware of those laws; and the publicized laws must be reasonably clear. This Part will also demonstrate how all three requirements occupy an important role in our modern conception of the rule of law. In doing so, it will lay the groundwork for demonstrating how fair notice provides a convincing argument for textualism.

A. The Promulgation Requirement

The most fundamental dictate of fair notice is that the government must inform its citizens of the laws to which it will subject them. Before a person can legitimately be held accountable under a rule, he must be told of the rule. Otherwise, the government could spring pain or punishment upon unwitting subjects who could have done nothing to avoid it. Thus, this element most obviously preserves a core aspect of fairness. …

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