Textualism Vs. Originalism: Understanding Constitutional Interpretations

Textualism and originalism are often used interchangeably, especially in the context of the US Constitution. However, they are distinct interpretive theories. Textualism is the theory that legal texts, including the Constitution, should be interpreted based on the ordinary meaning of the text. Originalism, on the other hand, focuses on the original understanding or intent of the text at the time of its adoption. While textualism and originalism may sometimes lead to similar results, they are not the same thing. Textualism commands adherence to the text, while originalism commands adherence to history. Originalism consists of a family of theories, some of which are textualist. For example, Public Meaning Originalism is considered a form of textualism.

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Textualism and originalism are different theories

Textualism and originalism are indeed different theories. Textualism commands adherence to the text, ignoring factors outside the text, such as the problem the law is addressing or what the drafters may have intended. Originalism, on the other hand, commands adherence to history, focusing on the original understanding at the time of its adoption. Originalists argue for democratic modifications of laws through the legislature or constitutional amendment. Originalism includes a range of theories of constitutional interpretation and can refer to original intent or original meaning.

Originalism was first proposed as an alternative to living constitutionalism, which interprets the text in light of current times, culture, and society. However, the original intent version of originalism has mostly fallen out of favour due to the difficulty of ascertaining the original intent of the drafters of the Constitution. Instead, originalists like Justice Scalia focus on the original meaning of the words of the Constitution, which is compatible with textualism.

Justice Scalia described himself as both an originalist and a textualist. He differentiated the two by pointing out that a strict constructionist, unlike an originalist, would not acknowledge that using a cane means walking with a cane. Justice Scalia rejected strict constructionism as "a degraded form of textualism that brings the whole philosophy into disrepute".

While textualism and originalism are different theories, they are sometimes used together, and they can lead to the same result. For example, Justice Neil Gorsuch is considered a textualist but has called originalism "the best approach to the Constitution". Similarly, Justice Elena Kagan has stated, "we are all originalists" and "we are all textualists now".

Originalism focuses on the original meaning of the Constitution

Originalism is a legal theory that bases the interpretation of constitutional, judicial, and statutory text on the original understanding at the time of its adoption. Originalism focuses on the original meaning of the Constitution, treating it like a statute and giving it the meaning that its words were understood to have at the time they were written. This approach is often described as the theory of "original intent".

Originalism was first proposed as an alternative to living constitutionalism, which interprets the Constitution in light of current times, culture, and society. Originalism, in contrast, argues for democratic modifications of laws through the legislature or constitutional amendment. Originalism consists of a family of different theories of constitutional interpretation, including original intent and original meaning.

The theory of originalism was influenced by jurist Robert Bork, who proposed that judges should follow the original meaning of the Constitution to avoid inputting their values into the interpretation of the text. Originalism has been criticised for its focus on the past, with some arguing that it is impossible to accurately gauge the intent of the framers of the Constitution.

Textualism, on the other hand, commands adherence to the text itself, interpreting legal texts based on the ordinary meaning of the words. Textualists ignore factors outside the text, such as the problem the law is addressing or the intent of the drafters. While originalism and textualism are not the same theory, they are often used together and can lead to similar results.

Some notable figures, such as Justice Antonin Scalia, have identified as both originalists and textualists, demonstrating the overlap between the two theories. However, it is important to note that originalism focuses on the historical understanding of the Constitution, while textualism focuses solely on the text itself.

Textualism focuses on the ordinary meaning of the Constitution

Textualism and originalism are two different legal theories that are often conflated. Textualism is the theory that legal texts, including the Constitution, should be interpreted based on the ordinary meaning of the text. Textualists ignore factors outside the text, such as the problem the law is addressing or what the drafters of the law may have intended. Instead, they consider what the words and phrases in the text meant when a particular constitutional provision was adopted. For example, a textualist like Justice Scalia would focus on the words of the Second Amendment and interpret them based on their ordinary meaning, finding an individual right to bear arms.

Originalism, on the other hand, is a legal theory that bases constitutional interpretation on the original understanding of the text at the time of its adoption. Originalists argue for democratic modifications of laws through the legislature or constitutional amendment. Originalism can refer to original intent or original meaning. Original intent tries to discern the original intention of the Founding Fathers, while original meaning focuses on the meaning of the words at the time of promulgation. Justice Scalia, for instance, described himself as both an originalist and a textualist, but he clarified that he was first of all a textualist, suggesting that textualism takes precedence over originalism in his judicial approach.

While textualism and originalism are distinct theories, they can sometimes be used together or lead to the same result. For example, Justice Neil Gorsuch is considered a textualist but has called originalism "the best approach to the Constitution." Similarly, Justice Kagan has stated that "we are all textualists now," while also acknowledging that “we are all originalists." This suggests that, in practice, it can be challenging to separate the two theories entirely.

In conclusion, textualism focuses on the ordinary meaning of the Constitution, interpreting the text based on the understood meaning of the words at the time of their adoption. It is distinct from originalism, which emphasizes the historical context and original understanding of the text. However, the two theories are often used in conjunction, and some legal scholars and justices have identified as both textualists and originalists.

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Originalism is a family of theories, some of which are textualist

Originalism and textualism are not the same thing, but they are related theories of constitutional interpretation. Originalism is a family of theories, some of which are textualist. Originalism is a legal theory that bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption. Originalists argue for democratic modifications of laws through the legislature or through constitutional amendment. Originalism can refer to original intent or original meaning.

Textualism, on the other hand, commands adherence to the text. Textualism is the theory that we should interpret legal texts, including the Constitution, based on the text's ordinary meaning. Textualists ignore factors outside the text, such as the problem the law is addressing or what the law's drafters may have intended. Textualism is often seen as a counter-approach to the "living Constitution" idea, where the text is interpreted in light of current times, culture, and society.

Some notable figures, such as Justice Antonin Scalia, have identified as both originalists and textualists. However, it is important to distinguish between the two theories. While they may sometimes be harnessed to work in tandem, they are different inquiries with distinct guiding principles. Originalism, as a family of theories, includes some textualist theories, such as "Public Meaning Originalism," which holds that the communicative content of the constitutional text should constrain constitutional practice.

Textualism and originalism are sometimes used together

Textualism and originalism are distinct interpretive theories, with textualism commanding adherence to the text and originalism commanding adherence to history. However, they are sometimes used together, with some justices self-identifying as both textualists and originalists. For instance, Justice Antonin Scalia described himself as both an originalist and a textualist, while Justice Neil Gorsuch is considered a textualist but has called originalism "the best approach to the Constitution". Justice Elena Kagan has also stated that “we are all textualists now”, while acknowledging that “in a sense, we are all originalists”.

Theories of originalism and textualism are often discussed in relation to each other and to the concept of living constitutionalism. Originalism is a legal theory that bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption. Originalists argue for democratic modifications of laws through the legislature or constitutional amendment, rather than judicial activism or interpretations related to a living constitution framework. Originalism can refer to original intent or original meaning. Original intent has largely fallen out of favour due to the difficulty of ascertaining the intent of the drafters of the Constitution. Original meaning, on the other hand, focuses on the meaning of the words of the Constitution at the time of its promulgation.

Textualism is the theory that legal texts, including the Constitution, should be interpreted based on the text's ordinary meaning. Textualists ignore factors outside the text, such as the problem the law is addressing or the intent of the drafters. However, textualism can be seen as a form of originalism, particularly in the case of "Public Meaning Originalism", which holds that the communicative content of the constitutional text should constrain constitutional practice.

In practice, textualism and originalism can lead to similar results, and it is common for proponents of these theories to treat them as a single inseparable package, referred to as "original public meaning". However, critics argue that they are different inquiries, commanding fidelity to different guiding principles.

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