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Textualism, Originalism, and the Bear (Mar. 30, 2016)

The late Justice Antonin Scalia believed that the role of a judge is to interpret law. He championed a method of interpretation known as textualism, which looks for the meaning of a law in the text of the law itself. A key part of this process is originalism, which ascribes to that text the meaning it has borne since the time it was adopted.

Textualism is often misunderstood. For starters, it is often confused with so-called strict constructionism, a hyper-literalism that adopts a strict, narrow reading of a legal text. My high-school government teacher made this mistake. Many people do. But textualism is, most assuredly, not strict constructionism. According to Justice Scalia, “[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.”[1] Thus, he dismissed strict constructionism as a “degraded form of textualism that brings the whole philosophy into disrepute.”[2] This is a crucial distinction.

Another point of confusion relates to the role of original meaning in the interpretation of legal texts, especially where courts must apply old constitutional provisions to new technological advancements. What bearing does original meaning have with respect to technologies that did not exist when a particular constitutional provision was adopted? Given the increasingly rapid pace of technological innovation—from drones, to GPS trackers, to self-driving cars—this question is at once relevant and timely.

The short answer is that originalism can and does encompass all sorts of technologies the Framers of the U.S. Constitution could not have envisioned. That the meaning of enacted law remains constant does not mean that originalism cannot account for new phenomena. As Justice Scalia and others have explained, “[d]rafters of every era know that technological advances will proceed apace and that the rules they create will one day apply to all sorts of circumstances that they could not possibly envision . . . .”[3] So originalist judges do not hesitate to apply the law to novel situations over time. An originalist judge merely asks how a new phenomenon or technology fits, if at all, within the original meaning of the law.[4]

This is why, for example, Justice Scalia speaks of the “trajectory” of First Amendment speech, from print media, to radio, to television, all the way up to the Internet.[5] Moreover, just as originalist judges acknowledge that the First Amendment right to free speech protects modern forms of communication, they likewise recognize that the Second Amendment right to bear arms extends to modern forms of weaponry,[6] and that the Fourth Amendment right against unreasonable searches applies to modern forms of search.[7]

Sometimes “there will be disagreement regarding the original meaning” or “as to how that original meaning applies to new and unforeseen phenomena,” but “the originalist at least knows what he is looking for: the original meaning of the text.”[8] With the Constitution, this search for original meaning entails a careful historical inquiry, in which an originalist will often consult the writings of “intelligent and informed people of the time” when relevant constitutional provisions were adopted, because those writings “display how the text of the Constitution was originally understood.”[9] For this reason, Justice Scalia would “consult the writings of some men who happened to be delegates to the Constitutional Convention—Hamilton’s and Madison’s writings in The Federalist, for example”—but will “give equal weight to Jay’s pieces in The Federalist, and to Jefferson’s writings, even though neither of them was a Framer.”[10] This, in broad strokes, is how originalism fits within the broader framework of textualism.

Admittedly, the process by which a judge follows the “trajectory” of a constitutional provision from the old to the new is, in Justice Scalia’s own words, “not entirely cut-and-dried but requires the exercise of judgment.”[11] Indeed, Justice Scalia readily acknowledged that “[t]extualism will not relieve judges of all doubts and misgivings about their interpretations” because “[j]udging is inherently difficult, and language notoriously slippery.”[12] Judges do not interpret laws in a vacuum. They interpret laws to resolve cases or controversies between adverse parties who disagree, sometimes vehemently, over what the outcome should be. As a law clerk to two federal judges, I saw firsthand just how hard the job of a judge can be. Judging, let me assure you, is no easy task—even for a textualist.

But textualism need not be a perfect theory of interpretation for judges, lawyers, and scholars to embrace it. Textualism just has to be better than any competing theory on offer, such as purposivism (for which meaning depends not on what a law says but on what a judge perceives as its purpose), consequentialism (for which meaning hinges on extratextual consequences), and other non-textualist interpretive theories. To drive home this point, Justice Scalia often told a joke about two hunters in the woods. The hunters open their tent flap and see a huge grizzly bear rushing toward them. As they run from the bear, one hunter says to the other, “It’s no use. We’re never going to outrun that bear.” The other hunter wisely responds, “Oh, I don’t have to outrun the bear. I just have to outrun you!” Justice Scalia’s point was simple: It takes a theory to beat a theory; and, for those of us who want judges to interpret law rather than make it, there is no better theory than textualism.

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[1] Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 23 (Amy Gutmann ed., 1997).

[2] Id.

[3] Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 86 (2012).

[4] Id.

[5] Scalia, supra note [1], at 45; see also, e.g., Reno v. Am. Civil Liberties Union, 521 U.S. 844, 849 (1997) (applying the First Amendment to the Internet); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 637–38 (1994) (applying the First Amendment to television).

[6] See, e.g., Caetano v. Massachusetts, 577 U.S. ---- (2016) (per curiam) (applying the Second Amendment to stun guns); District of Columbia v. Heller, 554 U.S. 570, 582 (2008) (Scalia, J.) (applying the Second Amendment to modern handguns and holding that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”).

[7] See, e.g., United States v. Jones, 132 S. Ct. 945 (2012) (applying the Fourth Amendment to searches by GPS tracking devices) (Scalia, J.); Kyllo v. United States, 533 U.S. 27, 31–36 (2001) (applying the Fourth Amendment to thermal-imaging searches) (Scalia, J.).

[8] Scalia, supra note [1], at 45.

[9] Id. at 38.

[10] Id.

[11] Id. at 45.

[12] Scalia & Garner, supra note [3], at xxix.

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