Textualism and Originalism

"I think that when statesmen forsake their own private conscience for the sake of their public duties, they lead their country by a short route to chaos."
--Sir Thomas More (A Man for All Seasons)

In a tribute to his friend Antonin Scalia, Judge Nap notes as have these pages that Scalia was "the most aggressive and consistent defender on the Supreme Court of the primacy of the text of the Constitution in the post World War II era.

Prior to WWII, this approach was regularly observed in high court rulings. Opinions written by the "Four Horsemen," for example, can be interpreted in this manner. Once FDR was able to pack the court in his favor, however, adherence to the Constitution when judging matters of law became passe and nearly non-existent under some courts (e.g., the Warren regime).

Scalia's powerful arguments over the years helped turn the tide such that today even ideological opponents on the Supreme Court feel obligated to pay lip service to the Constitution as a backstop for legal decisions.

Theories of interpreting the Constitution according to the plain meaning of the words go by two names: textualism and originalism.

Textualism is grounded in the assertion that the Constitution means what it says. Because it says that it is the supreme law of the land, and that American judges take an oath to uphold it, then judges are bound by the text rather than interpreting it as they wish. Thus, "no law" means no law, "due process" mean fair process due to all, and constitutional guarantees are real guarantees.

If the text is ambiguous, then it is the duty of judges to ascertain the original meaning of the words that form the ambiguity. This is originalism. Originalism often requires a study of history but, thanks to the founders, the historical record is ample.

Rejecting this line of thinking opens a Pandora's Box of discretionary rule. Judges are permitted to interpret the Constitution in novel and creative ways according to their own ideologies and interests.

There are several reasons that we KNOW that textualism and originalism were intended by the framers. Federal judges were specified to have lifetime tenure because they were meant to be the anti-democratic part of central government. Their insulated, institutional role was to preserve constitutional norms, structures, and guarantees from interference by branches of government subject to popular election (and thus favor). It can be argued that the framers were naïve in their belief that federal judges could remain insulated from political influence and kept beyond reproach, but there seems little doubt that a grant of lifetime tenure was intended to preserve, rather than dismantle, the constitutional framework that the framers toiled over.

Inclusion of the constitutional amendment process also is consistent with textualism and originalism theory. If the supreme law of the land could be subjectively interpreted, then there would be no need for a meticulous amendment process that required supermajority votes for change. Interpreting law using a "living Constitution" approach or other discretionary means clearly negates the need for any amendment process as law can be legislated from the bench.

If constitutional laws need to be changed, then it is role of neither the legislative, executive, nor judicial branches to do so exclusively. Instead, the amendment process must be followed. Difficulty in changing the law in this fashion is demonstrated by the fact that so few amendments to the Constitution have been passed using this process over the past 200+ years.

Healthy distrust of government guided the framers' hands when crafting the supreme law of the land. The Constitution can easily be viewed as a straightjacket for government, one that the framers knew was necessary to restrain constant attempts at overreach. Distrust of government is a timeless, not an outdated, concept. The role of a properly functioning judicial branch is to advocate that distrust in defense of individual liberty.

Textualist and originalist approaches helped Justice Scalia play his jurist role well.