statutory-construction
&#39;Strict construction&#39; vs. &#39;plain meaning&#39; vs. &#39;textualism&#39; vs &#39;originalism&#39; vs &#39;original intent&#39;
<p><a href="https://en.wikipedia.org/wiki/Original_intent" rel="nofollow noreferrer">Wikipedia</a> propounds <strong>1.</strong> 'original intent'. The other 3 terms are from: Richard A. Posner, <em>How Judges Think</em> (2008), <a href="https://books.google.com/books?id=wNoGBAAAQBAJ&amp;lpg=PT118&amp;ots=EJn2N08Wi-&amp;dq=%22%22strict%20construction%22%20can%20mean%20interpreting%20statutes%22&amp;pg=PT118#v=onepage&amp;q=%22%22strict%20construction%22%20can%20mean%20interpreting%20statutes%22&amp;f=false" rel="nofollow noreferrer">p. 191 Bottom - 192 Top</a>.</p>

<p>p. 191</p>

<blockquote>
  <p>  My last example of traditional legal reasoning is the interpretation of statutes and 
  constitutions. It is the scene of interminable debate. Traditionally it was a debate 
  between advocates of "strict construction," or its <strong>approximate synonym [2.]</strong> "plain 
  meaning," and of "loose construction" ("construction" meaning "interpretation"). 
  Today it is more commonly a debate between advocates of "textualism" and 
  "originalism," on the one hand, and of "dynamic" or "purposive" interpretation, and 
  the concept of "the living Constitution," on the other hand.<br>
    <strong>[3.]</strong> "Strict construction" can mean interpreting statutes (and other documents to which 
  legal significance attaches) narrowly, as in the old "canon of construction" that 
  statutes in derogation of the common law are to be interpreted narrowly so as to 
  minimize their inroads into that law. Or it can mean interpreting statutes and other 
  documents literally, that is, according to the "plain meaning" of their words, without 
  recourse to considerations of legislative history, real-world context or consequences, 
  or other indicia of legislative purpose. Literal interpretations </p>
</blockquote>

<p>p. 192</p>

<blockquote>
  <p>can be astonishingly 
  broad. "Literal when narrow" may be the practical meaning of strict construction. The 
  loose constructionist is a nonliteralist, but he does not necessarily favor broad 
  interpretations of statutes or constitutional provisions, creating new judicially 
  enforceable rights. He could in other words be a practitioner of judicial self-restraint 
  rather than of judicial activism.<br>
    <strong>[4.]</strong> "Textualism" is literalism. <strong>[5.]</strong> "Originalism" means giving the words of a 
  constitutional provision <strong>[5.1]</strong> (the term is rarely used in relation to any other type of 
  enactment) <strong>[End of 5.1.]</strong> their original meaning—more precisely, restoring the understanding of the 
  ratifiers. So the two terms are quite close, <strong>[5.2]</strong> except when the meaning of crucial terms 
  has changed over time <strong>[End of 5.2.]</strong> —I give the example of habeas corpus in chapter 10 [on p. 292 Bottom]—and 
  except that if the statutory text is ambiguous a strict constructionist will want to 
  construe it against the litigant who is relying on it while the originalist will be guided 
  by the meaning that the text's authors (or ratifiers, in the case of constitutional 
  provisions) would have assigned to the text. Textualism and originalism share with 
  strict construction an antipathy to interpreting a statute or a constitutional provision by 
  reference to its purpose. Semantic rather than pragmatic or policy-oriented methods of 
  interpretation,<sup>31</sup> all three are quintessentially legalistic techniques. </p>
</blockquote>

<p><a href="https://en.wikipedia.org/wiki/Strict_constructionism#Criticisms" rel="nofollow noreferrer">Scalia</a> explained the difference between 3 and 4, also <a href="https://en.wikipedia.org/wiki/Textualism#Methods" rel="nofollow noreferrer">here</a>: 3 appears more literal, unthinking, and more capable of absurd outcomes, than 4. </p>

<p>p. 292 exemplifies, but doesn't expound, the distinction between 4 and 5.</p>

<blockquote>
  <p>    Suppose now that Congress curtailed or even eliminated federal ha- 
  beas corpus as a postconviction remedy, though there was no rebellion 
  or invasion. Would that be a violation of the suspension clause? An 
  originalist would say no; a "living Constitution" buff would say yes; a 
  textualist (here illustrating a fissure in the textualist-originalist school) 
  would also have to say yes (habeas corpus is habeas corpus). But one 
  does not need a theory to recognize that a judge's ruling that "curtailing 
  an optional statutory enlargement violates the suspension clause would 
  create an irrational ratchet. Habeas corpus could always be enlarged, but 
  once enlarged could not be returned to its previous, less generous scope 
  without a constitutional amendment. </p>
</blockquote>

<ol start="6">
<li><p>But how can 2, 3, 4, 5, be distinguished? </p></li>
<li><p>Re 5.1: Consider only constitutional interpretation: then how do 3 and 4 differ? </p></li>
<li><p>Re 5.2 : how does this explain the distinctions between 3 and 4?</p></li>
</ol>

<p>Here are some general explanations of the different terms.</p>

<p><strong>Strict Construction / Plain Meaning / Textualism</strong> The law means exactly what it says and nothing more. There is no wiggle room for interpreting it to mean things that it doesn't explicitly say.</p>

<p><strong>Loose Construction</strong> When interpreting a law take into consideration what it seems the law is trying to accomplish which can be more than what the text of the law explicitly say. </p>

<p><strong>Originalism</strong> When interpreting a law use the meanings of the words at the time the law was written instead of the current meanings. You can use either a strict or loose construction along with originalism, but usually proponents of originalism are also proponents of strict construction since slight changes in meanings of words aren't likely to change how a loose constructionist would interpret the laws anyway. Originalism usually only matters when interpreting a rather old law as the meanings of words don't change very fast. </p>

<p><strong>An example:</strong></p>

<p>In his dissent in King v Burwell Justice Scalia wrote:</p>

<blockquote>
  <p>This  case  requires  us  to  decide  whether  someone  who   buys 
  insurance  on  an  Exchange  established  by  the  Secretary  gets 
  tax  credits.    You  would  think  the  answer  would   be 
  obvious—so  obvious  there  would  hardly  be  a  need  for   the 
  Supreme  Court  to  hear  a  case  about  it.    In  order  to<br>
  receive  any  money  under  §36B,  an  individual  must  enroll in an
  insurance plan through an “Exchange established by  the State.”  The
  Secretary of Health and Human Services  is  not  a  State.    So  an 
  Exchange  established  by  the  Secretary  is  not  an  Exchange 
  established  by  the  State—which means  people  who  buy  health 
  insurance  through  such  an Exchange get no money under §36B</p>
</blockquote>

<p>As a textualist, Scalia interpreted "Exchange established by the State" to mean, well, an exchange that was established by a state. The literal words that were written. While the majority (using a loose construction interpretation) interpreted exchanges established by the federal government, in place of state exchanges to qualify as an "exchange established by the state". In such an interpretation, you consider things such as the effect different interpretations would have. In this case, the law sort of falls apart if you interpret it the way Scalia did. A textualist would argue that the law means what it says and congress should do a better job writing laws, a loose constructionist would argue that clearly this isn't what congress meant. </p>

<p><strong>Another example:</strong></p>

<p>As an originalist, Justice Scalia referenced the federalist papers in his opinion in DC v Heller in order to better understand how people interpreted the second amendment when it was originally written.</p>

<h2>On some of the nuance that exists between those definitions:</h2>

<p><strong>Strict constructionism &amp; textualism</strong>: not synonyms. Scalia did not consider himself a strict constuctionist. Rather, he viewed it as a lesser form of textualism and argued that the words should be construed reasonably, not leniently nor strictly. Basically, his issue is with the consideration, for example, of the intent the lawmakers who voted on and the executive who signed the law in question had when they approved its measures. More precisely, he is against affording the contemplated intent of such bodies any subjective intent. He explained his rationale best when <a href="https://scholarship.law.campbell.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&amp;httpsredir=1&amp;article=1317&amp;context=clr" rel="nofollow noreferrer">he wrote</a>, </p>

<blockquote>
  <p>under the guise or even self-delusion of pursuing unexpressed
  legislative intents, common-law judges will in fact purusue their own
  objectives and desires, extending their lawmaking proclivities from
  the common law to the statutory field.</p>
</blockquote>

<p><strong><a href="http://www.scotusblog.com/2014/11/symposium-king-v-burwell-and-the-plain-meaning-rule/" rel="nofollow noreferrer">Plain meaning</a></strong> is likewise distinguishable from the other two terms. The "plain meaning" rule had been controversial but just recently found a way into the national conversation again, in a case called <em>King v. Burwell.</em> There, the question was whether the "plain meaning" of the phrase "Exchange established by the State" meant that it could only apply to exchanges which were <em>actually</em> established by the State. This was, of course, about the Obamacare exchanges. The administration argued that that was not the intent of the Congress. </p>

<p>Additionally, originalism is meant to encompass all the theories which subscribe to the idea of the "fixation thesis." This is the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120244" rel="nofollow noreferrer">notion</a> that any meaning that is in the words of any constitutional provision is forever fixed at the time it was put into the Constitution. Linguistical changes in society in the future are not to change the meaning of the words as written. </p>

<p>Of course, these terms have in common that they all describe some subset of </p>
