The Intra-Textualism Theory: Interpreting The Constitution

Textualism, or intra-textualism, is a formalist theory of legal interpretation that focuses on the plain or ordinary 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 of the text and do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments. Textualism is often contrasted with originalism and living constitutionalism, with the former focusing on the original public meaning of the Constitution and the latter on interpreting the Constitution according to evolving societal standards.

Explore related products

The Challenge of Originalism: Theories of Constitutional Interpretation

$41.97 $53

Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review

$25.58 $37.99

Constitutional Interpretation: The Basic Questions

$17 $31.49

Who Am I to Judge?: Judicial Craft versus Constitutional Theory

$4.49 $35

Constitutionally Conforming Interpretation – Comparative Perspectives: Volume 2: Connections and Analysis (Hart Studies in Constitutional Theory)

$171 $190

Constitutional Ambiguity and the Interpretation of Presidential Power (American Jewish Society (Dis))

$35.95 $35.95

Originalism vs Textualism

The intra-textualist theory of constitutional interpretation is often referred to as "originalism" or "textualism". Originalism and textualism are terms often used in legal debates during high-profile Supreme Court cases.

Originalism was first proposed as an alternative to living constitutionalism, focusing on the original intention of the Founding Fathers and the original meaning of the words of the Constitution. However, determining the original intent of the drafters of the Constitution is difficult and may be inappropriate, so originalists shifted their focus to the original meaning of the Constitution's text. This approach is compatible with textualism, which interprets legal texts based on their ordinary meaning, ignoring factors outside the text, such as the problem the law addresses or the intent of its drafters. Textualism focuses on the plain or popular meaning of the text, emphasising how the terms would have been understood by people at the time of ratification and the context in which the terms appear. Textualists believe there is an objective meaning to the text and do not typically consider the intent of its drafters.

While originalism and textualism are often seen as compatible, some scholars argue that they are incompatible approaches to legislative history. Originalism embraces historical sources and legislative history to determine the Constitution's "original public meaning", while textualism rejects intent or purpose derived from legislative history. This contradiction in approaches has led to debates among scholars about the legitimacy of textualist and originalist methodologies.

In conclusion, originalism and textualism are theories of constitutional interpretation that focus on the meaning of the Constitution. Originalism considers the original intent and meaning of the Constitution's text, while textualism interprets the text based on its ordinary meaning, disregarding external factors. While there is overlap between the two theories, they differ in their treatment of legislative history, with originalism utilising it and textualism rejecting it.

The 'Living Constitution' theory

The Living Constitution theory is a non-originalist interpretation of the Constitution, suggesting that it is a living, breathing document that evolves, changes over time, and adapts to new circumstances, without the need for formal amendments. It is a vision of a Constitution with dynamic boundaries that are congruent with the changing needs of society.

Supporters of the Living Constitution theory advocate for a broad application of the Constitution in line with current views. They argue that broad ideals, such as "liberty" and "equal protection", were included in the Constitution due to their timeless and inherently dynamic nature. For instance, the understanding of liberty in 1791 is different from that in 1591 or 1991; it transcends the recognized rights of a particular era. Thus, giving these terms a static meaning under the guise of "originalism" goes against the very theory it claims to uphold.

The Living Constitution theory is often characterized as inherently disregarding constitutional language, suggesting that one should not merely read and apply the text as it is. Instead, it emphasizes that the meaning of certain phrases, such as "just compensation", should be applied differently than they were 200 years ago. This does not necessarily imply a change in the meaning of "liberty" since 1791, but rather a recognition of what liberty entails today, which may not have been fully recognized in the past.

Legal theorist Martin David Kelly supports this dynamic interpretation, arguing that most constitutional provisions are "always speaking", meaning they are operative on an ongoing basis indefinitely. Thus, their meaning can change over time, and there is a basis for giving them a dynamic interpretation. This idea is further supported by Thomas Jefferson's question: why should people from long ago, living in a different world, decide fundamental questions about our government and society today?

While the Living Constitution theory provides flexibility in decision-making, critics argue that it is more susceptible to judicial manipulation. Additionally, some critics use the term Living Constitution pejoratively, highlighting its vague and imprecise nature.

Objective meaning of the text

Textualism is a mode of legal interpretation that focuses on the plain or ordinary meaning of the text of a legal document. Textualists believe that 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. They are concerned primarily with the plain, or popular, meaning of the text of the Constitution. 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.

Textualism should not be confused with the "plain meaning" approach, a simpler theory used prominently by the Burger Court in cases such as Tennessee Valley Authority v. Hill, which looked at the dictionary definitions of words, without reference to common public understanding or context. Textualism looks at the ordinary meaning of the language of the text, not merely the possible range of meanings of each of its constituent words.

Textualists acknowledge the interpretive doctrine of lapsus linguae (slip of the tongue), also called "scrivener's error". This doctrine accounts for situations in which, on the very face of the statute, it is apparent that there is a mistake of expression.

Textualism is often contrasted with originalism and living constitutionalism. Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. The original meaning of constitutional texts can be discerned from dictionaries, grammar books, and from other legal documents from which the text might be borrowed. It can also be inferred from the background legal events and public debate that gave rise to a constitutional provision. Living constitutionalists, on the other hand, believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment.

Explore related products

A Matter of Interpretation: Federal Courts and the Law - New Edition (The University Center for Human Values Series)

$18.49 $19.95

Contemporary Perspectives On Constitutional Interpretation

$52.43 $68.99

Modern Statutory Interpretation: Problems, Theories, and Lawyering Strategies

$73.32 $78

Judging under Uncertainty: An Institutional Theory of Legal Interpretation

$90.08

Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (Inalienable Rights)

$51.71 $31.49

Constitutionally Conforming Interpretation – Comparative Perspectives: Volume 1: National Reports (Hart Studies in Constitutional Theory)

$90 $100

Judicial Precedent

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.

Textualism, as a theory of constitutional interpretation, is often contrasted with originalism and living constitutionalism. Originalism is a theory that interprets the Constitution based on its original public meaning at the time of its writing. Living constitutionalists, on the other hand, believe that the meaning of the Constitution evolves as social attitudes change over time.

While textualism focuses on the plain meaning of the text, it does not ignore the context in which the terms appear. Textualists acknowledge the interpretive doctrine of lapsus linguae (slip of the tongue) or "scrivener's error," which accounts for mistakes in expression within a statute. Additionally, some textualist approaches may allow for the consideration of contemporary values to the extent that they have become incorporated into modern understandings of phrases in the Constitution.

In conclusion, judicial precedent, particularly the decisions of the Supreme Court, serves as a significant source of constitutional interpretation. Textualism, as a theory, guides judges and justices in interpreting the Constitution based on the plain meaning of the text while also considering the context and potential errors. This approach aims to promote objectivity and predictability in judicial interpretations of the Constitution.

Ordinary meaning of the text

Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text. Textualists argue that courts should read the words of a statutory text as any ordinary member of Congress would have read them. They look for the meaning "that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris [the body of law]."

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.

Textualism should not be confused with the "plain meaning" approach, a simpler theory used prominently by the Burger Court in cases such as Tennessee Valley Authority v. Hill, which looked to the dictionary definitions of words, without reference to common public understanding or context. 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.

Textualists are concerned primarily with the plain, or popular, meaning of the text of the Constitution. They are not concerned with the practical consequences of a decision; rather, they are wary of the Court acting to refine or revise constitutional texts. Textualists do not, generally, accept the authority of the Courts to "refine" statutes. Textualism prevents judges from deciding cases in accordance with their personal policy views, leading to more predictability in judgments.

Frequently asked questions