Textualism

Textualism, in U.S. law, is a theory of legal interpretation according to which laws and other legal documents are best understood by considering the common meanings of the words or phrases they contain rather than the goals or intentions of those who drafted them, even if such factors are clearly indicated. In practice, textualism also takes into account the semantic contexts in which words or phrases are used. A related interpretive theory is originalism, according to which historical laws and other legal documents—the U.S. Constitution in particular—are best understood by considering the common meanings of words or phrases at the time the documents went into effect. Originalism may also take into account, as needed, pertinent historical events, movements, controversies, or other documents from the same time period.

Textualism was developed and put into work by U.S. Supreme Court Justice Antonin Scalia, who had been nominated to the Court by Pres. Ronald Reagan in 1986. Scalia also advocated for and presented originalist interpretations of the Constitution in his many conservative opinions. He and the jurist Robert H. Bork, another originalist, promoted and practiced their theories in reaction to ground-breaking decisions of the Supreme Court under Earl Warren (1891–1974), the Court’s liberal Chief Justice from 1953 to 1969. Among those rulings were Brown v. Board of Education (1954), which prohibited racial segregation in public schools, Loving v. Virginia (1967), which struck down state laws prohibiting interracial marriage, and Miranda v. Arizona (1966), which required police to inform criminal suspects of their rights to remain silent and to have an attorney present before and during their questioning. Warren’s Court effectively followed a third theory of legal interpretation, known as “living constitutionalism,” under which the meanings of important words and phrases in the Constitution are purposefully broad or wide-ranging and thus variable in meaning with changes in society itself.

Although textualism was initially appealing only to a small number of conservative judges, it gradually gained acceptance among most conservatives and many moderate and even liberal judges—though textualist-based opinions continued to differ along political lines. Under Chief Justice John G. Roberts, Jr. (2005– ), textualism became a common mode of interpretation in Supreme Court decisions. As the liberal justice Elena Kagan remarked in frustration in 2015, “We’re all textualists now.”

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Conservatives have long viewed textualism as well as originalism as important tools with which to identify and preserve the meanings of major laws and constitutional provisions and thereby to prevent liberals from using their own interpretations as a form of “judicial activism.” Although liberals and moderates have used both tools to support their own readings, they have also accused conservatives of ignoring or clearly misusing the tools when a resulting interpretation does not support their desired rulings. Kagan herself made such a claim in a dissenting opinion in West Virginia v. Environmental Protection Agency (2022): “It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons…magically appear as get-out-of-text-free cards.”