Bench Memos

Law & the Courts

Judge Barrett on Textualism and Originalism

Judge Amy Coney Barrett embraces the twin interpretive methodologies of textualism and originalism that Justice Scalia (for whom she clerked) espoused, and she has displayed a thorough and sophisticated understanding of those methodologies.

As I understand Judge Barrett’s use of the terms (which is the same as my own), textualism and originalism are essentially two names for the same methodology. The term textualism arose in the statutory context to counter purposivism, while the term originalism arose in the constitutional context to counter living-constitutionalism (and other non-interpretive methods of inventing constitutional meaning). As Barrett explained last year:

Originalists, like textualists, care about what people understood words to mean at the time that the law was enacted because those people had the authority to make law. They did so through legitimate processes, which included writing down and fixing the law. So “[e]ach textual provision must necessarily bear the meaning attributed to it at the time of its own adoption.” And, as with statutes, the law can mean no more or less than that communicated by the language in which it is written. Just as “when a precise statute seems over- or underinclusive in relation to its ultimate aims[,] . . . [a textualist] hews closely to the rules embedded in the enacted text, rather than adjusting that text to make it more consistent with its apparent purposes,” so too an originalist submits to the precise compromise reflected in the text of the Constitution. That is how judges approach legal text, and the Constitution is no exception. [Footnote citations omitted.]

Consistent with the dissents in the Supreme Court’s opinion last term in the Title VII case (Bostock v. Clayton County), Barrett emphasizes that textualism is not literalism and that the distinction between the two concepts “is fundamental to the validity of the textualist enterprise.” She quotes with approval one scholar’s concise explanation of the difference:

Literalism should be distinguished from the genuine search for textual meaning based on the way people commonly understand language. Literalism is a kind of “spurious” textualism, unconcerned with how people actually communicate—with how the author wanted to use language or the audience might understand it. It holds up the text in isolation from actual usage.

In a law-review article from 2016 (“Congressional Originalism,” co-authored with John Copeland Nagle), Barrett explains that originalism “is characterized by a commitment to two core principles”:

First, the meaning of the constitutional text is fixed at the time of its ratification. Second, the historical meaning of the text “has legal significance and is authoritative in most circumstances.” Commitment to these two principles marks the most significant disagreement between originalists and their critics. A nonoriginalist may take the text’s historical meaning as a relevant data point in interpreting the demands of the Constitution, but other considerations, like social justice or contemporary values, might overcome it. For an originalist, by contrast, the historical meaning of the text is a hard constraint. [Footnote citations omitted.]

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