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Textualism

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Textualism is a theory of statutory interpretation that holds that a statute's original meaning as evidenced in its text should govern how judges interpret the statute, as opposed to alternative methods of statutory interpretation such as inquiring into historical sources in attempt to discover the intent of the legislative body that approved the statute.[1]

Textualism is consistent with the Plain Meaning Rule, which says that interpreters of statutes ought to interpret what a statute says according to its "plain meaning."

"Textualism" can also refer to a set of practical techniques used by some noted jurists to nail down the meaning of a statute through close consideration of its text.[2]

Factors considered in textual interpretation

Speaker meaning and sentence meaning

Textualism as a speech-related theory takes into account the relevance of speaker’s meaning and sentence meaning. The speaker’s meaning of a given text (or author’s meaning) is the meaning that the speaker intended the audience to take from what he or she said. Also, when someone speaks or writes for a particular audience on a particular occasion, the speaker or author can take into account what they know about the audience.[2]

The case for textualism

Some experts who view textualism as a semantic theory of interpretation either look for a plain or a linguistic meaning to the text of the letter of the law. Many legal experts claim that plain meaning is based on the nature of what the text says. However, those who advocate for textual interpretations of statutes also take into account that a particular audience on a particular occasion may have speaker's meaning to textualism in a more professional environment.[2]

Experts who view textualism as a normative theory of interpretation question the use of "plain meaning of the text," when defining the term properly. The test many legal experts use is that plain meaning best serves the rule of law values of publicity, predictability, certainty, and stability of the law. Advocates for the rule of law believe that the rulings of the courts must be accessible to ordinary citizens. Lay citizens are likely to interpret statutes to have their plain meaning, because lay people are not well versed in further political education.[2]

Frank Easterbrook

Frank Easterbrook of the Seventh Circuit Court of Appeals is a noted textualist who uses textualism in a matter of interpreting judicial power to the letter of the law. Easterbrook is one of the most noted federal intermediate appeals judges who is a textualist.[3]

Paul Killebrew of New York (NYU) Law has credited Easterbrook for using a "clarity driven" approach to textualism, praising Easterbrooks' clear and distinct opinions in complex matters.[3]

Antonin Scalia

Associate Justice of the United States Antonin Scalia is considered to be a textualist and an originalist.

Scalia criticizes federal judges whose intent is to disregard the text of the Constitution or statutes and to adopt what he called “the attitude of the common-law judge, the mind-set that asks, ‘What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?’” Scalia condemns this trend as many judges have a tendency to treat the Constitution as “Living Constitution." Scalia has always urged judges instead to adopt a textualist approach where, in which the letter of the law according to Scalia "is guided by the text and not by intentions or ideals external to it, and by the original meaning of the text, not by its evolving meaning over time".[4]

References