Textualism
Encyclopedia
Textualism is a formalist
theory of statutory interpretation, holding that a statute
's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy
, or substantive questions of the justice and rectitude of the law.
The textualist will "look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words." The textualist thus does not give weight to legislative history
materials when attempting to ascertain the meaning of a text. Textualism is often associated with originalism
, and is advocated by Supreme Court Justices such as Hugo Black
and Antonin Scalia
, who staked out his claim in his 1997 Tanner Lecture: "[it] is the law that governs, not the intent of the lawgiver." Oliver Wendell Holmes, Jr.
, although not a textualist himself, well-captured the philosophy, and its rejection of intentionalism: "We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used ... We do not inquire what the legislature meant; we ask only what the statutes mean."
Strict constructionism
is often misused by laypersons and critics as a synonym for textualism. Nevertheless, although a textualist can be a strict constructionist, they are separate views: Justice Scalia, for example, warns that "[t]extualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be.... A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." Similarly, 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.
K-Mart v. Cartier, 486 U.S. 281, 319 (1988) (Scalia, J., concurring in part and dissenting in part).
Justice Scalia has also written:
Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, J., concurring).
Textualists do not, generally, accept the authority of the Courts to "refine" statutes:
Webster v. Doe, 486 U.S. 592, 619 (Scalia, J., dissenting).
Textualists acknowledge the interpretive doctrine of lapsus linguae (slip of the tongue), also called "scrivener's error." This doctrine accounts for the situation when on the very face of the statute, it is apparent that there is a mistake of expression. (See, e.g., United States v. X-Citement Video
, 513 U.S. 64) (1994) (Scalia, J., dissenting) ("I have been willing, in the case of civil statutes, to acknowledge a doctrine of 'scrivener's error' that permits a court to give an unusual (though not unheard of) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result") and even break it (see, e.g., Green v. Bock Laundry Machine Co., 490 U.S. 504, 527) (1989) (Scalia, J., concurring) ("We are confronted here with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional, result. Our task is to give some alternative meaning to the word "defendant" in Federal Rule of Evidence 609(a)(1) that avoids this consequence; and then to determine whether Rule 609(a)(1) excludes the operation of Federal Rule of Evidence 403.") Other textualists might reach alternative conclusions. Scalia's apparent inconsistency is perhaps explained by his choice to sometimes adhere to the more venerable judicial canons of interpretation, such as the constitutional avoidance canon.
The word "textualism” was first used by Mark Pattisonin in 1863 to criticize Puritan theology, according to the Oxford English Dictionary (17 Oxford English Dictionary 854 (2d ed. 1989)). Justice Robert Jackson first used the word "textualism" in a Supreme Court opinion a century later in Youngstown Sheet & Tube Co. v. Sawyer
.
In his article, "Must Formalism Be Defended Empirically," Professor Cass Sunstein begins by stating:
Cass R. Sunstein, Must Formalism Be Defended Empirically, 66 U Chi. L. Rev. 636, 662-66 (1999) (quoting 72 Entscheidungen des Reichsgerichts in Strafsachen 9 (1939), translated in Ingo Müller, Hitler's Justice: The Courts of the Third Reich at 101 (1991)).
. Amendments to the Acts Interpretation Act 1901
have rejected key elements of textualism, stating that statements made in the Second Reading speech by Ministers introducing an Act may be used in the interpretation of that act.
Legal formalism
Legal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not suggest that the substantive justice of a law is irrelevant, but rather,...
theory of statutory interpretation, holding that a statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy
Purposive theory
Purposive theory is a theory of statutory interpretation that holds that common law courts should interpret legislation in light of the purpose behind the legislation. Purposive theory stands in contrast to textualism or statutory derogation, two other prominent common law interpretation...
, or substantive questions of the justice and rectitude of the law.
The textualist will "look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words." The textualist thus does not give weight to legislative history
Legislative history
Legislative history includes any of various materials generated in the course of creating legislation, such as committee reports, analysis by legislative counsel, committee hearings, floor debates, and histories of actions taken...
materials when attempting to ascertain the meaning of a text. Textualism is often associated with originalism
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
, and is advocated by Supreme Court Justices such as Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
and Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, who staked out his claim in his 1997 Tanner Lecture: "[it] is the law that governs, not the intent of the lawgiver." Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
, although not a textualist himself, well-captured the philosophy, and its rejection of intentionalism: "We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used ... We do not inquire what the legislature meant; we ask only what the statutes mean."
Strict constructionism
Strict constructionism
In the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...
is often misused by laypersons and critics as a synonym for textualism. Nevertheless, although a textualist can be a strict constructionist, they are separate views: Justice Scalia, for example, warns that "[t]extualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be.... A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." Similarly, textualism should not be confused with the "plain meaning" approach, a simpler theory used prominently by the Burger Court
Warren E. Burger
Warren Earl Burger was the 15th Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings, the U.S...
in cases such as Tennessee Valley Authority v. Hill
Tennessee Valley Authority v. Hill
Tennessee Valley Authority v. Hill et al., or TVA v. Hill, 437 U.S. 153 , was a United States Supreme Court case. It is a commonly cited example of the canon of construction expressio unius est exclusio alterius .- Background :The Tennessee Valley Authority started the building of the Tellico Dam...
, which looked to the dictionary definitions of words, without reference to common public understanding or context.
Methods
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 (see Noscitur a sociis):- The statute excludes only merchandise "of foreign manufacture," which the majority says might mean "manufactured by a foreigner" rather than "manufactured in a foreign country." I think not. Words, like syllables, acquire meaning not in isolation but within their context. While looking up the separate word "foreign" in a dictionary might produce the reading the majority suggests, that approach would also interpret the phrase "I have a foreign object in my eye" as referring, perhaps, to something from Italy. The phrase "of foreign manufacture" is a common usage, well understood to mean "manufactured abroad."
K-Mart v. Cartier, 486 U.S. 281, 319 (1988) (Scalia, J., concurring in part and dissenting in part).
Justice Scalia has also written:
- The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated-a compatibility which, by a benign fiction, we assume Congress always has in mind. I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a result different from the one that these factors suggest.
Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, J., concurring).
Textualists do not, generally, accept the authority of the Courts to "refine" statutes:
- Even if we were to assume, however, contrary to all reason, that every constitutional claim is ipso facto more worthy, and every statutory claim less worthy, of judicial review, there would be no basis for writing that preference into a statute that makes no distinction between the two. We have rejected such judicial rewriting of legislation even in the more appealing situation where particular applications of a statute are not merely less desirable but in fact raise "grave constitutional doubts." That, we have said, only permits us to adopt one rather than another permissible reading of the statute, but not, by altering its terms, "to ignore the legislative will in order to avoid constitutional adjudication."
Webster v. Doe, 486 U.S. 592, 619 (Scalia, J., dissenting).
Textualists acknowledge the interpretive doctrine of lapsus linguae (slip of the tongue), also called "scrivener's error." This doctrine accounts for the situation when on the very face of the statute, it is apparent that there is a mistake of expression. (See, e.g., United States v. X-Citement Video
United States v. X-Citement Video
United States v. X-Citement Video, Inc., was a federal criminal prosecution filed in the United States District Court for the Central District of California in Los Angeles against X-Citement Video and its owner Rubin Gottesman. The charge was trafficking in child pornography, specifically videos...
, 513 U.S. 64) (1994) (Scalia, J., dissenting) ("I have been willing, in the case of civil statutes, to acknowledge a doctrine of 'scrivener's error' that permits a court to give an unusual (though not unheard of) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result") and even break it (see, e.g., Green v. Bock Laundry Machine Co., 490 U.S. 504, 527) (1989) (Scalia, J., concurring) ("We are confronted here with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional, result. Our task is to give some alternative meaning to the word "defendant" in Federal Rule of Evidence 609(a)(1) that avoids this consequence; and then to determine whether Rule 609(a)(1) excludes the operation of Federal Rule of Evidence 403.") Other textualists might reach alternative conclusions. Scalia's apparent inconsistency is perhaps explained by his choice to sometimes adhere to the more venerable judicial canons of interpretation, such as the constitutional avoidance canon.
The word "textualism” was first used by Mark Pattisonin in 1863 to criticize Puritan theology, according to the Oxford English Dictionary (17 Oxford English Dictionary 854 (2d ed. 1989)). Justice Robert Jackson first used the word "textualism" in a Supreme Court opinion a century later in Youngstown Sheet & Tube Co. v. Sawyer
Youngstown Sheet & Tube Co. v. Sawyer
Youngstown Sheet & Tube Co. v. Sawyer, , also commonly referred to as The Steel Seizure Case, was a United States Supreme Court decision that limited the power of the President of the United States to seize private property in the absence of either specifically enumerated authority under Article...
.
In his article, "Must Formalism Be Defended Empirically," Professor Cass Sunstein begins by stating:
- In the Nazi period, German judges rejected formalism. They did not rely on the ordinary or original meaning of legal texts. On the contrary, they thought that statutes should be construed in accordance with the spirit of the age, defined by reference to the Nazi regime. They thought that courts could carry out their task "only if they do not remain glued to the letter of the law, but rather penetrate its inner core in their interpretations and do their part to see that the aims of the lawmaker are realized." . . . .After the war, the Allied forces faced a range of choices about how to reform the German legal system. One of their first steps was to insist on a formalistic, "plain meaning" approach to law.
Cass R. Sunstein, Must Formalism Be Defended Empirically, 66 U Chi. L. Rev. 636, 662-66 (1999) (quoting 72 Entscheidungen des Reichsgerichts in Strafsachen 9 (1939), translated in Ingo Müller, Hitler's Justice: The Courts of the Third Reich at 101 (1991)).
Australia
Textualism was influential in Australia, and was particularly prominent in the interpretative approach of Sir Garfield BarwickGarfield Barwick
Sir Garfield Edward John Barwick, was the Attorney-General of Australia , Minister for External Affairs and the seventh and longest serving Chief Justice of Australia...
. Amendments to the Acts Interpretation Act 1901
Acts Interpretation Act 1901
The Acts Interpretation Act 1901 is an Australian statute of the Commonwealth Parliament which provides rules for the interpretation of acts and other legislation...
have rejected key elements of textualism, stating that statements made in the Second Reading speech by Ministers introducing an Act may be used in the interpretation of that act.