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Textualism

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Textualism is a legal theory that courts in the United States should rely on the plain meaning of the words in the Constitution and in other laws. Where the text does not support the interpretation, the interpretation necessarily fails. Supreme Court justice Antonin Scalia is was a prominent textualist. For an example of his view, see Zuni v Dept. of Education,[1] where there appeared to be a difference between the intent of a statute and its plain meaning.

A type of "textualism" is "meta-textualism." This method of interpretation suggests that all phrases in the Constitution are related, and should be interpreted as such. An example of a meta-textual interpretation would hold it erroneous that while the enforcement clause of the Thirteenth Amendment is read broadly, the enforcement clause of the Fourteenth Amendment is read narrowly, despite their grammatical similarities. Meta-textualism would read the two as necessarily equivalent.

Other times, textualism is just a smokescreen for doing what the judge wants to do, such as for Supreme Court Samuel Alito who wrote:[2]

Thus, when textualism is properly understood, it calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment.

But Alito subsequently ruled against parts of the Voting Rights Act "like a pirate ship" (in his words) in a non-textualist interpretation.[3]

The contrasting school of thought to textualism is "purposivism", which (to oversimplify) claims that judges need to "read between the lines" and consider the apparent purpose of the statute, so as to correctly figure out what a statute means.

Do what I say, not what I meant[edit]

See the main article on this topic: Hypocrisy

Textualism is vulnerable to the gradual shift in the meaning of words which is the fate of all living languages. For instance, a century ago in the English language, one definition of "worship" referred to indistinct forms of deference owed to authorities such as judges or lords, such that there even existed "Your Worship" as a term of respect. More recently, the broader definition has faded away and the word has come to mean, exclusively, the adoration reserved solely to a deity. If the word had been included in the Constitution, then a textualist would be forced to offer worship as it is currently formulated to human beings.

And in a case of one hand giving while the other hand takes away, textualism eliminates the liberal judicial activism which discovered a woman's right to an abortion in Roe v. Wade but it also eliminates the conservative judicial activism which asserted the state, not the immediate family, had a right to determine the fate of Terri Schiavo.

References[edit]

  1. "Zuni Public School District no. 89 et al. v. Department of Education et al.". 
  2. Bostock v. Clayton Count Legal Information Institute, Cornell Law School.
  3. The Supreme Court showcased its ‘textualist’ double standard on voting rights by Nicholas Stephanopoulos (July 1, 2021 at 4:28 p.m. PDT) The Washington Post.