Textualism

Textualism is a formalist means of legal interpretation or statutory interpretation that places emphasis on a document’s plain-text meaning. Formalism views the adjudication of cases as straightforward and can be smoothly accomplished by careful reading of case law. Textualists view things objectively, and examine each word of a text according to their definitions within the context of the subject matter. They do not simply take a dictionary definition approach to words. They also do not consider implications or ramifications. Presumably, according to textualism, all textualists reading a text (or a law) would interpret it the same way.

Proponents of textualism argue that relying on the definition and known-meanings of language allows for a simpler means of interpretation, as well as a more transparent government overall. Those against textualism argue that solely taking the words into consideration narrows issues too strictly and overly simplifies the texts. Furthermore, the texts, as written, may not be as straightforward and specific as proponents of textualism may want them to be. The opposite of textualism is originalism. Within originalism, the meaning of the Constitution at the time it was first ratified in 1788 is considered when interpreting the text. Although the two terms stand in (somewhat) opposition to one another, there are also numerous other modes of interpretation that may or may not possess similarities to textualism.

Background

In the United Stated v. Wurzbach (1930), Supreme Court Justice Oliver Wendell Holmes, though not necessarily a textualist himself, wrote that there was “no warrant for seeking refined arguments to show that the statute does not mean what it says.” Although the term textualism was not explicitly stated, the statement is one of the earliest recognitions of the method of interpretation. Some argue that it was introduced even earlier in non-legal realms. More than two decades later, in Youngstown v. Sawyer (1952), Justice Robert Jackson criticized textualism, arguing that textualism was too rigid. However, proponents have defended textualism by arguing that it promotes a true democracy because it focuses on what has been created and/or supported by the people, and not what justices may interpret something to be. In other words, there is a common definition or interpretation of the words utilized within a law or statute that can be understood or interpreted by those who understand the context.

However, opponents of textualism do not view the process as objective. They argue that the lived experiences of those interpreting laws could have a valuable impact on legal analysis. Context, as well as moral reasoning, and other relationships could play a role on the application of text, particularly if the wording involved is broad. Similarly, times have changed since many laws have been written, and opponents argue those changes must be considered in discussing the intent of a written law. Some critics have gone so far as to say that textualism is a tactic used by conservatives to maintain the status quo and avoid progress.

Although not every legal scholar prescribes to the textualist approach, many—if not most—begin their interpretation with the text itself. Justices, including the late Ruth Bader Ginsberg, frequently have focused on the text, structure, purpose, and legislative history of a law before fully providing their interpretation. A classic example of textualism put into practice can be seen in Supreme Court Justice Hugo Black’s dissenting opinion in Griswold V. Connecticut (1965). In his opinion, Black wrote against the majority. In the case, the majority struck down a law that made it a crime, based on the Fourteenth Amendment, to provide birth control to married couples. Black stated that the majority went too far in its interpretation of the Bill of Rights when it argued that a right to privacy, with regard to marital relations, existed.

Justice Antonin Scalia was also considered a long-time textualist. In Conroy v. Aniskoff (1993) Scalia argued that the country is not governed by the “intentions of legislators.” Instead, he continued, the “text is the law” and must be observed. From that opinion on, Scalia would not utilize legislative history. His influence extended to other justices, and the use of legislative history, though still in use, is minimal or written with disclaimers. Textualism was slower to spread to the federal courts and its judges, however. Fewer judges at that level have the willingness to commit themselves fully to textualism and abandon other modes of reading that involve more interpretation.

Strict constructionism is often misinterpreted and misused as a synonym for textualism. However, there are definite distinctions between them. Though both are involved with the literal interpretations of texts, strict constructionism does not consider when the law or text was written or what the circumstances surrounding the text were. Thus, a textualist could be a strict constructionist, but a strict constructionist is not a textualist. Originalism also bares some similarity to textualism. However, they, too, have definitive differences. Originalists tend to believe that the Constitution had a public meaning that has not changed over time. The task of judges and legislators is to construct that original meaning as they work. A key difference is also that while textualism is based on the text itself, originalism is based on the public meaning or perception of the text that may be different than the actual meaning of the text.

Comparison to other modes of interpretation

Although the use of legislative history has been minimalized, that does not mean that other (more contextual) aspects are not considered in analyzing or interpreting a law or text. In addition to textualism and originalism, there are other ways of interpreting texts, including, but not limited to: judicial precedent, pragmatism, modernism, and structuralism.

Judicial precedent typically examines how laws have been interpreted in the past and continues to use that interpretation as a standard. Past precedent is routinely a go-to for justices and judges. It is difficult to determine how much influence precedent or stare decisis (let the decision stand) has on interpretation and decision making. Relying of precedent for textual interpretation is helpful to the general public because they already know what to expect based on history. There is some concern that relying on precedent can be problematic and past decisions wrongfully decided. Therefore, while precedent can be helpful in knowing what to expect, it is not always the ideal form of interpretation.

Pragmatism explores the consequences of one legal interpretation versus another interpretation. Context is critical within pragmatism. For example, in United States v. Comstock (2010), the court decided whether Congress had the right to allow the Department of Justice to indefinitely detain convicted sex offenders who were labeled sexually dangerous and/or mentally ill, but who had already served their prison sentences.

Modernism looks and interprets the constitution as if it were being written today. As such, it takes into consideration how cultures, norms and people (among other points) have changed and interprets the texts accordingly. Sometimes referred to as a living constitution approach, modernism views the Constitution as a living document that is not static in structure, but instead capable of being shaped as times change. Opponents to this interpretive approach argue that the Constitution can only be changed through an amendment and that to have a fluid approach to its interpretation is dangerous. However, opponents say it is crucial to see the document as malleable or the legal system would consistently be gridlocked with each technological advancement. This argument is frequently heard when debating how to handle questions involving the internet and other new technologies.

Structuralism interprets wording after considering the relationships between the three branches of government. The executive, legislative and judicial branches are often addressed when discussing the checks and balances system of government, as well as the notion of a separation of powers. The relationship between federal and state governments is also explored, as is the relationship between the government and its people. Structuralism can further be split into formalism and functionalism. In formalism, proponents believe that the Constitution states who federal powers should be used or allocated. Functionalism, on the other hand, states that the Constitution as a text is clear in stating the relationship between the three branches of government, but only at (or to) a specific point. Beyond those areas, the relationships must be negotiated and determined.

Bibliography

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Burling, James. “What Is the Difference between Originalism vs. Textualism vs. Living Constitutionalism?” Pacific Legal Foundation, 27 Apr. 2022, pacificlegal.org/originalism-vs-textualism-vs-living-constitutionalism/. Accessed 7 Feb. 2025.

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