Should a textualist be an originalist?

 Commentators like Dworkin and Tribe believe it is not possible for one to be an originalist (from Scalia’s perspective) as well as a textualist. In this blog post, I will attempt to draw the connection between these two methods to see if there is a reasonable connection between the two. Essentially, I plan to outline an argument to show why if one is a textualist it is reasonable for them to be an originalist. 

In both instances there is judicial restraint. Textualists interpret the meaning of the law within the text itself. Textualists use generally accepted canons of construction like when the text of the statute is clear, that is the end of the matter. Further, ambiguities in a newly enacted statute are to be resolved in such a fashion as to make the statute not only internally consistent but also compatible with previously enacted laws. The law also must be from an “objectified intent” as what a reasonable person would gather from the law. There cannot be a “secret” law where only those who know the legislative history or the intent of the drafters understand the true meaning of the law.  Thus textualist’s believe the meaning of the law depends on the text, essentially “what the law is telling us to do.” There is also judicial restraint as a judge should not overreach when interpreting a law, as interpreting it “as the law ought to mean.” Now that I laid out his argument for textualism, I must connect textualism to originalism. 

Since the constitution was first drafted in the 1700s, some of the meanings of those words have evolved. Referring to the second amendment “"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." So referring to militia in today’s terms would seem to be U.S. militias who are active today, however, there would be a question as to whether they are considered well regulated. Further, in centuries from now militia may mean something entirely different. Thus, it seems the way to interpret this text in a reasonable way is to not evolve it over time to fit our current values and understanding. Rather, an originalist would say that to use textualism in the sense that we must understand it from what a reasonable person would gather from the law, and thus we must understand it from how the text was originally understood. In that way we are using textualism to understand the meaning of the text within its time period. In that sense, originalism is not asking one to look to the intent of the drafter’s and ensure that what they hoped for in drafting whatever amendment remains. Instead, originalism is ensuring that the text written in that time carries the same meaning it did then as it does now. In other words, how it is originally understood is how it’s interpreted today. With that being said, originalism does use textualism in its approach and applies it in a way to ensure the constitution’s text is interpreted as fixed and enduring. This approach restrains judges from subjective ruling, and changing the meaning of the constitution. 

Further originalism allows for the proper understanding of these freedoms to continue as time passes. Scalia believes “originalism must often seek to apply that earlier age’s understanding of the various freedoms to new laws, and to new phenomena that did not exist at the time” (140). By understanding the text’s amendment in that time, we can then use that understanding to apply it to new rulings. With that framework, the supreme court would keep consistency, stability and fairness in their rulings. 

His exception to originalism is stare decisis which he believes should hold in the interest of stability. By that if originalism leads us to a different conclusion of what the text means then how its be interpreted for hundreds of years, we must refer to stare decisis. With that, we must follow the false interpretation.