Textualism is not Strict Constructionism is not Originalism

IMG_3052As President Donald Trump prepares to appoint a second Supreme Court justice, the national dialogue has been saturated with gossip over what judicial philosophy the next nominee might bring to the bench. For legal nerds, SCOTUS nominations are what the World Cup is to soccer fans: the one time everyone else cares about your passion. And just as soccer fans spend their World Cup days watching those around them erroneously insist that every pass is offside and every slide tackle is a yellow card, we legal nerds spend our nominations days watching the media conflate and confuse judicial philosophies. Riveting stuff.

For example, Vox recently ran an article asserting that President Trump’s next nominee would “likely look a lot like the previous . . . nominee, Neil Gorsuch, who was an admirer of Antonin Scalia’s ‘originalist’ judicial philosophyalso commonly referred to as ‘strict constructionism.'” To be fair, before concluding that strict constructionism is all “about political outcomes, not the Constitution,” the article quotes Professor Akhil Amar, who unsurprisingly provides a more helpful assessment of strict constructionism.

But in his book on interpreting legal texts, A Matter of Interpretation, Justice Scalia himself said in no uncertain terms: “I am not a strict constructionist, and no one ought to be.” He continued, “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.”

It may come as a surprise that Scalia refuted the label “strict constructionist” and admonished that a “text should not be construed strictly.” Many identify Scalia with just the opposite. But that is because there is great confusion—among non-lawyers and legal types, too—about the three decidedly distinct concepts of textualism, strict constructionism, and originalism.

Chief Justice Roberts, for example, was dubbed a strict constructionist during his Supreme Court confirmation. But nothing could be further from the truth. And anyone who has read the Chief’s opinion in NFIB v. Sebelius would know that.

Even Senate Leader Mitch McConnell recently praised the White House’s and Senate’s work in “appointing and confirming these strict constructionists to the courts.” Yikes. Strict constructionists these jurists are not.

Whatever one thinks about the theories themselves, it is important to get the labels right. Otherwise, no ground is gained by debating their merits. Any debate about any thing, after all, must begin with some consensus about what the thing to be debated is.

So at a time when judging judges is at the forefront of American civic discourse, it seems appropriate to provide a brief primer on what these three terms generally do and do not mean. As Justice Clint Bolick of the Arizona Supreme Court writes, “[a]ll judges have a philosophy of legal interpretation, even if they don’t think much about it.” And the interpretive philosophies of judges is a hugely consequential issue. Justice Bolick estimates:

That is why judicial nominations are so important—and often so contentious. The judiciary’s method of interpreting the Constitution and statutes will play a large role in determining the relationship between individuals and their government on a wide range of issues that intimately touch the lives of all Americans.

So as Americans ignore the pain of the World Cup and again wade deep into the nominations waters—and as debates about interpretive philosophies inevitably ensue—it is critical that we exercise a level of precision and discipline in deploying the labels textualist, strict constructionist, and originalist. They are not the same.

Textualism: Honoring the Text

As Judge Willett recently wrote, “Text is the alpha and the omega of the interpretive process.” That is textualism in a nutshell.


Justice Bolick puts it this way:

Textualism is . . . grounded in the belief that the role of judges is to enforce the Constitution and laws that conform to the Constitution . . . A textualist endeavors to give effect to the words of the Constitution and statutes. If the meaning of the words is clear, the judge goes no further. If they are ambiguous, the judge attempts to discern their meaning using well developed rules of construction.

As Judge Willett and Justice Bolick suggest, the bottom-line principle of textualism is that the enacted text of a law is to be given supreme deference as the ultimate repository of the law’s meaning. Because the object of textualist interpretation is enacted text, many mainstream textualists reject the use of legislative history—that history has never been enacted into law. Ilya Somin explains,

The text that is ‘the law’ is that which has been duly enacted in accordance with the procedures outlined in the Constitution, which require it to be voted on by a majority of both houses of Congress and then presented to the president. As prominent textualist Judge Frank Easterbrook put it, textualism rests ‘on the constitutional allocation of powers. The political branches adopt texts through prescribed procedures; what ensues is the law.’[1]

But even once a textualist has honed in on the relevant enacted text, textualism implicates a number of widely accepted ground rules. For example, Professor Caleb Nelson writes that “no ‘textualist’ favors isolating statutory language from its surrounding context.” That is, one major ground rule for textualists is that legal language must be understood within the context of the law or scheme of which it is part. Or, as Professor Manning tells it, “textualism . . . in practice is associated with the basic proposition that judges must seek and abide by the public meaning of the enacted text, understood in context (as all texts must be).”

Context is important to the textualist because contextual clues often help elucidate the linguistic meaning of an open-textured legal text, specially in cases of vagueness and ambiguity. This and many other deeply rooted interpretive rules are known as canons of construction, and they are all designed to honor textualism’s mandate: “Text is the alpha and the omega of the interpretive process.”

So textualism tells us what to interpret, and it implicates a number of ground rules for doing so. And as Justice Elena Kagan explained to a group of Harvard Law School students in November 2015, “we are all textualists now.”

But it is the separate province of strict constructionism and originalism to place additional constraints on how the process of textual interpretation works.

Strict Constructionism: Living and Dying by the Text

Strict constructionism is, as its name suggests, a strict philosophy on how to interpret a text.

Professor Larry Solum writes that the term strict constructionism “appears to have become popular as a campaign slogan used by Richard Nixon when he ran for President in 1968. Nixon promised that he would appoint judges who were ‘strict constructionists’ as opposed to the ‘judicial activism’ that characterized the Warren Court.” Unfortunately, this term has outlived and outgrown its apparent origins.

Perhaps Professor Solum is right to suggest that “[i]t simply isn’t clear what ‘strict construction’ means.” Maybe it is true strict constructionism, as a so-called interpretive philosophy, has no coherent set of core principles. Yet the term is often tossed about in discussions where textualism or originalism would be more precise. So here is one take on what people seem to mean when they invoke the term “strict constructionism”—especially when doing so in a pejorative manner.

Strict constructionism is hyperliteralism: it provides that a text be interpreted by reading the words as they come literally. So whereas textualism requires a reader to interpret a particular provision by considering the context in which the provision appears—i.e., the surrounding provisions and legal schemes—strict constructionism forbids such extracurriculars.

In this light, I disagree slightly with Professor Solum that the following definition from Law.com misses the mark:

strict construction (narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes.

In fact, I think that is exactly what most people have in mind when they invoke the label: a literal and narrow interpretational technique that by its very nature takes no account of developments between how the world was when the text was written and how the world is now.

Of course, my intuition is only that. I have no data to back it up. But this understanding aligns with Justice Scalia’s constant condemnation of the theory in his book with Bryan Garner, Reading Law. There, Scalia and Garner define “strict construction” as

1. A narrow, crabbed interpretation. 2. An interpretation according to the literal meaning of the words, as contrasted with what the words denote in context according to a fair reading.

Most leading textualists—and most leading originalists—reject strict constructionism to the extent it is to be understood in this manner. Justice Scalia was no exception. He wrote with Garner that “[s]trict constructionism understood as a judicial straitjacket is a long-outmoded approach deriving from a mistrust of all enacted law.” He implied that the theory acts to “limit one to the hyperliteral meaning of each word of the text” to the exclusion of considering “[t]he full body of a text,” which often “contains implications that can alter the literal meaning of individual words.” For these reasons, Scalia insisted that “[s]trict constructionism, as opposed to fair-reading textualism, is not a doctrine to be taken seriously.”

Yet time and again, lawyers, commentators, elected officials, and jurists confound the term “strict constructionist” with the entirely different concepts of textualism and originalism. Perhaps this can be attributed to what Professor Solum suggests is a lack of clarity on what exactly strict constructionism is. But there does seem to be some consensus in modern discourse that when one refers to strict constructionism, they mean rigid literalism—or, as Scalia described it, “a judicial straitjacket.” This indeed describes a concept quite different than either fair-reading textualism or originalism. It is a category all to its own.

In sum, modern usage suggests that “strict constructionism” describes a widely disfavored method of interpretation that not only focuses on enacted text but rejects generally accepted canons of constructions and contextual clues in favor of a hyperliteral reading of language in isolation.

Originalism: The Meaning of the Text

In 1980, Paul Brest wrote an article in the Boston University Law Review, called The Misconceived Quest for Original Understanding, in which he coined the term “originalism.” Brest was not one to waste words, opening the article: “By ‘originalism’ I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters.” He continued, “At least since Marbury . . . originalism in one form or another has been a major theme in the American constitutional tradition.”

But while originalism may boast a long history, it has not always been identified and debated as a distinct theory. Indeed, many point to the Warren Court era and Brest’s article as the genesis of a conscious discussion—in academia and in the public arena—about an express theory of originalism. And while Justice Scalia placed a public spotlight on that discussion, many still lack a basic understanding of what the theory actually holds.

Originalism is, in its broadest sense, an interpretive theory that understands legal text to retain the meaning it had at the moment is was ratified until duly amended or repealed. In Reading Law, Scalia and Garner define the theory as follows:

1. The doctrine that words are to be given the meaning they had when they were adopted; specif[ically], the canon that a legal text should be interpreted through the historical ascertainment of the meaning that it would have conveyed to a fully informed observer at the time when the text first took effect.

That seems a simple enough proposition: a law’s meaning does not change until those with authority to change it do so. In our system of government, that change must come via the legislative process.

Over the years, there have been several competing theories of how and why to do originalism. Professor Solum, however, writes that all breeds of originalism are fairly characterized by a shared and irreducible core. He explains that this core comprises two principles, one linguistic and the other normative.

First, virtually “all originalists agree that the linguistic meaning of the constitutional text was fixed at the time each provision was framed and ratified: this idea can be called the fixation thesis.” That is to say, the communicative content of a given set of written words does not itself evolve over time. (And there is no reason this concept cannot apply equally to statutes as to the Constitution.)

Second, “almost all originalists would agree that at a minimum the original meaning should constrain[] constitutional practice: this idea can be called the constraint principle.” In other words, judges do not derive a text’s original meaning merely as an academic exercise, but because that meaning should bear on how they apply the text they are interpreting to the issues they are deciding.

The most dominant strand of originalism today is often referred to as “new originalism.” Volumes have been written about new originalism and its predecessors, and this piece is not remotely intended to supplement that work. But with a view toward aiding civic discourse, two key features of new originalism are worth flagging.

First, Professor Barnett explains that new originalism focuses on the original public meaning of a legal text’s words. Perhaps that seems obvious, but it is a departure from earlier iterations of originalism that focused on the original intent of those who crafted a given legal text. Barnett credits this development to a speech by Scalia to incoming Department of Justice employees in the 1980’s.

Second, most new originalists agree on an interpretation-construction distinction. This concept holds that interpretation and construction are two separate and distinct activities that a judge engages in when interpreting and applying a legal text to resolve a given case or controversy. Barnett sums it up as follows:

Interpretation is the activity of identifying the semantic meaning of a particular use of language in context. Construction is the activity of applying that meaning to particular factual circumstances.

Notably, “construction” here should not be confused with the entirely unrelated interpretive category described above, “strict constructionism.” As used here, construction describes generally the work judges do in applying the linguistic meaning derived from an interpretive process. Strict constructionism, as explained above, is itself a distinct theory of how to conduct the interpretive process, and this theory does not necessarily demand that one be an originalist.

Understanding construction as a decisional activity distinct from interpretation is most important, and best understood, in the case of vague or ambiguous text. In some situations, it is simply not enough to interpret the text because the text itself is open-textured, or, statedly differently, the text lacks a clear and concrete meaning

For example, what does the phrase “cruel and unusual punishments” mean in the Eighth Amendment? Even after interpreting this phrase to uncover its original public meaning, a judge would likely be left with a less-than-definitive answer, making it difficult to decide a case on the basis of the provision’s communicative content alone. In that situation, the judge would need to engage in construction—i.e., the process of using non-textual decisional rules like deference to the legislature and construing criminal provisions narrowly, for example—to reach a disposition in the case at hand.

As should be obvious, it would be difficult to be an originalist without being a textualist. But the two concepts are distinct. And neither one is synonymous with strict constructionism.

Textualism demands that the interpreter of a law rely on the enacted text as the “alpha and omega of the interpretive process.” Originalism demands that the interpretive process venerate the meaning of the text that was fixed at the time it was ratified. As Professor Richard Primus put it in a Federalist Society debate, “textualism and originalism are not two names for the same thing . . . And in order to get a firm view of what is both strong and weak about either textualism or originalism, it is necessary to get a clear view of what it is and what it isn’t rather than running the two of them together.”

I could not agree more, and I hope only that lawyers an non-lawyers alike will heed Professor Primus’s advice as they debate the merits and shortcomings of these three distinct theories and the judges who employ them.

[1] Ilya Somin, Is Textualism Doomed?, 158 U. Pa. L. Rev. PENNumbra 235, 237 (2010).

One comment

  1. […] the mark on the subject (for more on how, see a colleague’s recent post on the subject here), going on to find the idea “troubling” – and, as relevant to Judge Kavanaugh, […]

%d bloggers like this: