us-supreme-court
Textualism and originalism
<p>In the context of interpreting the U.S. Constitution, what is the distinction between textualism and originalism? Are the two approaches applied much outside of the U.S. in other contexts?</p>

<p>It is generally held that Textualism is a kind of Originalism, which is a set of theories: these theories have something in common, which sets them apart from Minimalism or Living Constitiutionalism. The problem is that it is very difficult to establish a defining canon for Originalism, whereas Textualism is a newer development prominently associated with Scalia. There are three related theories: Original Intent, Textualism, and Original Public Understanding, subsumed under the umbrella of Originalism. The textual difficulty is finding a (somewhat) contemporary advocate of Original Intent or Public Understanding who maintains that theory in the face of Textualism, so that we can see the essential principles that distinguish the theories.</p>

<p>Smith (<a href="https://scholarship.law.duke.edu/djclpp/vol2/iss1/3/" rel="noreferrer">"Why originalism won’t die…"</a> says that</p>

<blockquote>
  <p>Originalism is the view, embraced by Antonin Scalia, Robert Bork,
  Clarence Thomas and many academic legal theorists, that the meaning of
  the Constitution should be settled by reference to the original
  understanding of those who enacted its provisions</p>
</blockquote>

<p>As characterized by <a href="https://tenthamendmentcenter.com/2012/05/21/original-intent-original-understanding-original-meaning/" rel="noreferrer">R.G. Natelson</a>, </p>

<blockquote>
  <p>The <em>original meaning</em> (or <em>original public meaning</em>) is how a
  reasonably intelligent, involved member of the public would have
  interpreted a provision. Primary evidence of original meaning is how
  words were used in common discourse and the definitions in
  contemporaneous dictionaries and legal sources. Circumstantial
  evidence includes the drafting and ratification conventions, public
  debates, and so forth.</p>
</blockquote>

<p>The public meaning theory seems to have not gotten much traction, though it might be subsumed under an attempt within Original Intent theory to find evidence for that original intent. Scalia (the arch-Textualist) characterizes his "opponent" originalism (not textualists) saying </p>

<blockquote>
  <p>"Originalists believe that the Constitution should be interpreted to
  mean exactly what it meant when it was adopted by the American
  people." (quote from Scalia AUSTIN AM.-STATESMAN, May 6, 2005, copied from
  Smith)</p>
</blockquote>

<p>Bork (<em>The tempting of America</em>) says that under the Original Intent view, "a judge is to apply the Constitution according to the principles <em>intended</em> by those who ratified the document" (emphasis added)</p>

<p>A variant sub-theory is strict constructionism, and in <em>Common-Law Courts in a
Civil-Law System</em>, 
Scalia cites the case of <a href="https://supreme.justia.com/cases/federal/us/508/223/" rel="noreferrer">Smith v. United States</a>, 508 U.S. 223 
to illustrate the difference between strict construction and textualism. In this case, 
case where defendant was said to have 
used a firearm  during and  in  relation  to  a drug  trafficking 
crime when he offered it in exchange for cocaine. Scalia, opining in the
minority, rejects the majority’s "strict" interpretation of the word
"use", says </p>

<blockquote>
  <p>The  phrase  “uses  a gun” 
  <em>fairly</em> [emphasis added] connoted  use  of  a  gun  for what  guns are  normally  used  for,  that  is, as  a  weapon.  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.</p>
</blockquote>

<p>In Scalia’s theory, which is a formalist but not a mechanical theory, words are to be interpreted "fairly", rather than "strictly":</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>Focusing on the difference between Scalia’s theory as a representative of textualism (sometimes called "original meaning" theory), and his characterization of other broadly-construed originalist theories (strict constructionism, as identified in <em>Common-law courts…</em>, Scalia in particular denies the relevance or even the existence of “intent” behind legislation. </p>

<blockquote>
  <p>The  first  and  most obvious reason  this  is true  is that,  with 
  respect  to 
  99.99  percent  of  the  issues  of  construction reaching  the  courts,  there 
  <em>is</em> no  legislative  intent,  so  that  any clues  provided  by  the  legislative history  are  bound  to  be  false</p>
</blockquote>

<p>followed by some interesting extracts from Senate floor debate that indicates how a certain bill was passed without anyone apparently reading the relevant committee report.</p>

<p>In short, the difference between original intent and original meaning has to do with whether the words used in a statute are dispositive, or are they a guide to discerning the intention of the legislature where that intention is to be enforced.</p>
