Difference between revisions of "Textualism"

Revision as of 05:38, January 5, 2021

Textualism is an approach to the interpretation of statutes and the U.S. Constitution that focuses on the text itself and its plain meaning rather than inquiring into the purpose of those who wrote the text. Under this view the legislative history of a statute is insignificant and should not be allowed to trump the text itself.

In the words of the leading proponent of textualism, Justice Antonin Scalia, statutory text always trumps "unenacted legislative intent."^[1]

Other leading textualists are Justice Clarence Thomas, Seventh Circuit Judge Frank Easterbrook and Neil Gorsuch.^[2]

A problem with textualism is that its leading advocates sometimes seem to twist it beyond recognition in order to attain their desired result. Justice Scalia, for example, held that selling violent video games to children is a full First Amendment right, despite no textual support for that position. Justice Gorsuch stated during oral argument on Oct. 8, 2019, that the text of the Title VII of the 1964 Civil Rights Act somehow supports special employment rights to transgendered persons: “I’m with you on the textual evidence.”^[3]

The term "textualism" was originally coined by Justice Robert Jackson in his famous concurrence in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952), which became more influential than the Court opinion. Later, this term was used by a liberal commentator in an unsuccessful attempt to embarrass it.^[4] An older form of textualism was the "plain meaning" doctrine.

A classic description of textualism, without using the term itself, is Justice Scalia's concurrence in Hirschey v. Federal Energy Regulatory Com., 777 F.2d 1 (D.C. Cir. Nov. 15, 1985).

Textualism is similar to "originalism", or "original meaning." These are different from purposivism. Other competing legal doctrines include Critical Legal Studies.

See also

• Judicial activism
• Originalism

References

1. ↑ INS v. Cardoza-Fonseca, 480 U.S. 421, 453 (1987) (Scalia, J., concurring)
2. ↑ Joe Carter (20 Mar 2017). 9 Things You Should Know About Neil Gorsuch and Supreme Court Confirmations. The Gospel Coalition, Inc.. Retrieved on 21 Mar 2017. “In his judicial philosophy, Judge Gorsuch is considered a proponent of originalism, a manner of interpreting the Constitution that begins with the text and attempts to give that text the meaning it had when it was adopted, and textualism, a method of statutory interpretation that relies on the plain text of a statute to determine its meaning.”
3. ↑ https://www.vox.com/first-person/2019/10/10/20906610/supreme-court-transgender-discrimination
4. ↑ William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 (1990) (under the doctrine of textualism, "once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant").