Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.
Definition
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 erroneously conflated with originalism, and was advocated by United States Supreme Court Justices such as Hugo Black and Antonin Scalia; the latter staked out his claim in his 1997 Tanner Lecture: " is the law that governs, not the intent of the lawgiver." Oliver Wendell Holmes, Jr., although not a textualist himself, well-captured this 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 could be a strict constructionist, these are distinctive views. To illustrate this, we may quote Justice Scalia, who warns that "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.
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 : As an illustrative example, Justice Scalia refers to a case in which the law provided for a longer sentence when the defendant "uses a firearm" "during and in relation to" a "drug trafficking crime." In the case, the defendant had offered to trade an unloaded gun as barter for cocaine, and the majority took this meeting the standard for the enhanced penalty. He writes that "a proper textualist" would have decided differently: "The phrase 'uses a gun' fairly connoted use of a gun for what guns are normally used for, that is, as a weapon. As I put the point in my dissent, when you ask someone, 'Do you use a cane?' you are not inquiring whether he has hung his grandfather's antique cane as a decoration in the hallway." Justice Scalia has also written: Textualists do not, generally, accept the authority of the Courts to "refine" statutes: Textualists acknowledge the interpretive doctrine of lapsus linguae, 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. and even break it that avoids this consequence; and then to determine whether Rule 609 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 Pattison in 1863 to criticize Puritan theology, according to the Oxford English Dictionary. 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:
Australia
Textualism was influential in Australia, and was particularly prominent in the interpretative approach of Sir Garfield Barwick. 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.
