Omar Bennett
Textualism is a theory of legal interpretation that focuses on the plain or ordinary meaning of the text of a legal document, ignoring factors outside the text, such as the intention of the drafters or the problem the law is trying to address. Textualism usually emphasizes how the terms in the Constitution would be understood by people at the time they were ratified, as well as the context in which those terms appear. Textualists believe there is an objective meaning of the text and are primarily concerned with the plain, or popular, meaning of the text. Textualism is often associated with originalism, a theory that interprets the Constitution based on the meaning the words carried at the time of writing. However, textualism is a subset of originalism and differs in that it refers to interpreting all legal texts by the ordinary meaning of the text, setting aside factors not in the text itself.
| Characteristics | Values |
|---|---|
| Meaning of the text | The ordinary meaning of the text at the time of ratification |
| Objective meaning | There is an objective meaning of the text |
| Intent | No consideration of the intent of the drafters, adopters, or ratifiers |
| Practical consequences | Not concerned with the practical consequences of a decision |
| Refinement | Wary of the Court acting to refine or revise constitutional texts |
| Non-textual sources | No consideration given to non-textual sources |
| Legislative history | No weight given to legislative history materials |
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What You'll Learn
Textualism vs. Originalism
Textualism and originalism are two schools of thought regarding the interpretation of the Constitution. Textualism is a theory of legal interpretation that focuses on the plain meaning of the words in a statute or constitution. Textualists believe that the meaning of a law is confined to its text and reject extra-textual considerations like the intent of lawmakers. Textualism can be applied to statutes as well as the Constitution and can be more flexible in adapting to changing language and norms.
Originalism, on the other hand, is the idea that the meaning of a constitutional provision is fixed at the time it was adopted. Originalists believe that the Constitution should be interpreted according to its original meaning and intent, as understood by the framers of the Constitution when it was first written. Originalism primarily concerns constitutional interpretation and can be seen as more rigid and inflexible as it does not easily adapt to changing societal norms and language evolution.
While textualism and originalism are often viewed as compatible and used in tandem, they are distinct interpretive theories with different guiding principles. Textualism focuses on the text itself, while originalism looks at historical sources and legislative history to determine the original public meaning. Textualism can be seen as more flexible and adaptable, while originalism provides a fixed interpretation that may not always align with modern societal values.
The difference between textualism and originalism can be seen in the interpretation of the Second Amendment. Originalists argue that the amendment's meaning is fixed at the time of its adoption and look at historical records to determine the framers' intent. Textualists, on the other hand, focus on the text itself and might argue for a modern interpretation of terms like 'arms' and 'militia'.
In conclusion, textualism and originalism offer different approaches to interpreting the Constitution and statutes. Textualism prioritizes the plain meaning of the text, while originalism emphasizes the original intent and meaning at the time of writing. While there is overlap and compatibility between the two theories, they are distinct in their focus and flexibility, with textualism being more adaptable to changing language and societal norms.
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Textualism vs. Living Constitutionalism
Textualism is a mode of legal interpretation that focuses on the plain meaning of the text of a legal document. Textualism emphasizes how the terms in the Constitution would be understood by people at the time they were ratified, as well as the context in which those terms appear. Textualists usually believe there is an objective meaning to the text and do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments when deriving meaning from the text. Textualists are primarily concerned with the plain, or popular, meaning of the text of the Constitution.
Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as the intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law. Textualists generally do not accept the authority of the Courts to "refine" statutes.
The word "textualism" was first used by Mark Pattison in 1863 to criticize Puritan theology, according to the Oxford English Dictionary. Justice Robert Jackson first used the word "textualism" in a Supreme Court opinion a century later in Youngstown Sheet & Tube Co. Notable textualists include Justice Hugo Black, Justice Antonin Scalia, and Justice Neil Gorsuch.
Living Constitutionalism, or judicial pragmatism, is the viewpoint that the U.S. Constitution holds a dynamic meaning even if the document is not formally amended. Proponents view the constitution as developing alongside society's needs and provide a more malleable tool for governments. The idea is associated with views that contemporary society should be considered in the constitutional interpretation of phrases. The Living Constitution is referred to as the living law of the land as it is transformed according to the necessities of the time and the situation. The primary argument for the Living Constitution is that interpreting the Constitution in accordance with its original meaning or intent is sometimes unacceptable as a policy matter, so an evolving interpretation is needed.
The term "Living Constitution" is sometimes used by critics as a pejorative, synonymous with "judicial activism." Opponents of the Living Constitution argue that it undermines democracy and that legislative action better represents the will of the people in a constitutional republic. The primary alternative to a living constitution theory is "originalism," which is compatible with textualism.
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Textualism vs. Strict Constructionism
Textualism and strict constructionism are two distinct interpretive philosophies for understanding the Constitution. Textualism is the belief that the role of judges is to enforce the Constitution and laws that conform to it. Textualism requires that the text be interpreted according to its "objective meaning", without regard to the intentions of its creators. If the meaning of the text is clear, no further interpretation is necessary. If the text is ambiguous, a judge may attempt to discern its meaning using established rules of construction. In other words, textualism does not rely on the broad dictionary definition of individual words in the text, but on how the words together would be understood by a reasonable person.
Strict constructionism, on the other hand, is a philosophy that interprets a text very literally. When a word or phrase has several meanings, strict constructionism applies the narrowest definition. It is a strict philosophy that does not consider the context of the text.
The terms textualism, originalism, and strict constructionism are often misused and confused, even by prominent figures such as Supreme Court justices and politicians. Justice Antonin Scalia, for example, is often identified as a strict constructionist, but he rejected this label, calling strict constructionism "a degraded form of textualism". He clarified that a text should not be construed strictly but reasonably, to contain all that it fairly means.
Originalism is a theory of constitutional interpretation rooted in history. It involves reading the Constitution as a court would have immediately after its adoption, either according to the original understanding of the ratifiers or, if that cannot be determined, how an objective, informed person at the time would have read it. Textualism is considered a subset of originalism, developed to avoid some of the messier implications of originalism.
In summary, textualism and strict constructionism are distinct interpretive philosophies. Textualism focuses on interpreting the text reasonably and considering the context, while strict constructionism takes a hyperliteral approach that does not account for context.
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Textualism vs. Intent of the Legislature
Textualism is a theory of legal interpretation that asserts the primacy of the text itself. Textualists derive meaning primarily from the ordinary meaning of the words as they were commonly understood at the time they were written and ratified. They focus on the plain language, grammar, and structure of the text, rejecting extra-textual sources for determining meaning, particularly the subjective intentions of drafters or legislative history. Textualism is often erroneously conflated with originalism, and was advocated by United States Supreme Court Justices such as Hugo Black and Antonin Scalia.
Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law. Textualist judges have contended that courts should not treat committee reports or sponsors' statements as authoritative evidence of legislative intent. This is because a 535-member legislature has no "genuine" collective intent concerning the proper resolution of statutory ambiguity. Textualism looks to the ordinary meaning of the language of the text, but it looks at the ordinary meaning of the text, not merely the possible range of meaning of each of its constituent words.
Original Intent, on the other hand, is a judicial philosophy that says the Constitution should be interpreted according to the intentions of those who wrote and ratified it at the time of its creation. Original Intent believes the Constitution’s meaning was fixed when it was created and doesn’t change with evolving societal values unless formally amended. Original Intent (specifically "Framers’ Intent") seeks to uncover the subjective intentions of the individuals who drafted and ratified the Constitution.
Textualism and Original Intent represent distinct, though sometimes overlapping, approaches to deciphering the Constitution. The primary distinction lies in their central focus and the types of evidence they prioritize. Textualism is argued to be more objective because it focuses on publicly available and enacted text, rather than attempting to discern subjective intentions or broad “purpose”. This focus is believed to lead to more stable and predictable judicial decisions.
In conclusion, textualism and the intent of the legislature are two different approaches to interpreting the law. Textualism focuses on the plain meaning of the text, while the intent of the legislature considers the intentions of those who wrote and ratified the law. Textualism is often associated with the rejection of intentionalism, arguing that the text of the law governs, not the intent of the lawgiver.
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Textualism and the First Amendment
Textualism is a mode of legal interpretation that focuses on the plain meaning of the text of a legal document. Textualism usually emphasizes how the terms in the Constitution would be understood by people at the time they were ratified, as well as the context in which those terms appear. Textualists usually believe there is an objective meaning of the text, and they do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments when deriving meaning from the text.
In the case of Dennis v. United States, the Court held that Congress could criminalize the conspiracy to advocate the forcible overthrow of the US government, even though it involved freedom of speech. Justice Black dissented, arguing that the Court should not have balanced the potential harm to the government against First Amendment rights. This case demonstrates the tension between textualism and other modes of constitutional interpretation, such as originalism, which considers the understanding of the Constitution by the populace at the time of the Founding.
The Court's recent reliance on textualism and originalism in First Amendment cases, such as Jones v. Mississippi, has been noted. However, in some cases like Miller v. Alabama, the Court has applied "evolving standards of decency" rather than a strict textualist interpretation of the Eighth Amendment. This inconsistency in the Court's approach to textualism has been criticized by legal scholars.
In conclusion, textualism plays a significant role in interpreting the First Amendment, but it is not the only method used by the Court. The Court's use of textualism in conjunction with other interpretive methods, as well as its occasional departure from textualism, continues to shape the understanding and application of the First Amendment in US law.
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Frequently asked questions
Textualism is a mode of legal interpretation that focuses on the plain meaning of the text of a legal document. Textualists believe that there is an objective meaning of the text and do not consider the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments.
Textualism guides the interpretation of the Constitution by considering what a reasonable person would understand the text of the law to mean. Textualists believe that the interpretation of the Constitution should be based on the text's ordinary meaning and the context in which the terms appear.
Originalism is a theory of constitutional interpretation that considers the meaning of the Constitution as understood by the populace at the time of its founding. Textualism, on the other hand, focuses solely on the text of the document, ignoring factors such as the intention of the law when passed or the problem it intended to remedy. Textualism is often considered a subset of originalism.
In the case of *Trop v. Dulles*, the Court held that the Eighth Amendment prohibited the government from revoking the citizenship of a U.S. citizen as punishment. The Court first looked briefly at the text of the Amendment, noting that the "exact scope" of "cruel and unusual punishment" had not been detailed. The Court then turned to other modes of interpretation, such as moral reasoning and historical practices, to decide the case.
