Some thoughts on the future of textualism
and concerns about its timid application
The conservative legal movement has experienced immense success in recent years. To name just a few prominent examples, Roe v. Wade, race-based admissions, and Chevron—the case that required deference to the legal interpretations of unelected bureaucrats—are dead. Limits on the President’s power to fire his subordinates are dying. I could go on.
Yet many in the conservative legal movement are prepared to declare it a failure. More precisely, more and more (mostly younger) right-leaning lawyers talk as though they want to jettison “textualism,” the interpretive theory that has long been the lynchpin of conservative legal thought, and that delivered so many of the just-noted wins.
That would be a mistake. And it is a mistake that I think can be averted by appreciating that textualism is necessary but insufficient condition for good judging. Timid textualism is not useful for those who wish to reverse, not just stop, the degradation of America’s constitutional order and traditional Western values. Timid textualism will not, to borrow a phrase, Make America Great Again. Only judges committed to applying textualism aggressively are up to the task. Those of us who support textualism must therefore insist on its aggressive application; bluntly put, the political support needed to appoint textualist judges will wither unless textualist judges aggressively exercise what discretion they have.
Let me first define my terms. “Textualism” (sometimes called “originalism” when applied to the Constitution) rests on the premise that the words in statutes, constitutions, and others legal texts mean what they meant when they were written down. The meaning of legal texts is thus fixed, not living. This premise shouldn’t be controversial. Indeed, it’s uncontroversial outside the legal context. A recent brief filed on behalf of Ed Meese in the Supreme Court of Ohio explains why. I can’t improve upon that explanation, so I’ll just quote it (omitting the internal citations):
When words are reduced to writing, readers assign to those words the meanings they had when they were written. Imagine, for example, that one were to find a note from Queen Anne describing “Sir Christopher Wren’s architecture at St. Paul’s Cathedral” as “‘awful, artificial, and amusing.’” To understand what she meant, one would interpret those words based on the meanings they had when Queen Anne used them—and conclude that the Queen meant “awe-inspiring, highly artistic, and though-provoking,” not “atrocious, fake, and laughable.” The same principles apply to literary interpretation. “If you want to know what Shakespeare meant by ‘Sweet friends, your patience for my long abode; Not I, but my affairs, have made you wait’ you would do well to follow the usage of Shakespeare’s time: ‘long abode’ does not refer to an elongated dwelling.” Similarly, correctly interpreting a centuries-old recipe might require a reader to know that, before the discovery of maize in America, the word “corn” referred to any “seed of one of the cereals, as of wheat, rye, barley, etc.”[1]
In addition to reflecting the normal way that we understand the written word, textualism is the only option we have if we wish to be governed by the laws the People and their representatives passed. If laws’ meanings can change then they are not binding—and so they are not “law”—in any meaningful sense.
Given all this, I find textualism hard to dispute on the merits.
Where, then, does the frustration come from? I see three sources.
The first is that textualism will not always produce results we like. If laws are binding and mean what they were originally understood to mean, then bad laws will produce bad results. To this, I have no solution except to say that the alternative is to abandon law altogether. Assuming we want to be governed by laws and not by the whims of our leaders, we have no choice but to accept that we (and our leaders) will sometimes be blocked from doing things we would like. But the alternatives are anarchy and tyranny, and neither is preferable to the rule of law.
The second source of frustration with textualism is bad textualism. The Supreme Court’s decision in Bostock is the best example. That case held that Title VII’s prohibition on employers’ discriminating “because of sex” extends to discrimination based on sexual orientation and “gender identity.” The majority opinion claims the mantle of textualism. But it does not faithfully apply the theory. At the time of Title VII’s adoption, no one understood “sex” to mean anything other than biological sex; the word did not encompass sexual orientation or gender identity. The majority acknowledged as much. But it claimed that sex always plays a “but for” role in sexual-orientation and gender-identity discrimination; firing (say) a gay man for his attraction to men means firing him for something he would not be fired for if he were a women. According to the Court, this meant that one cannot discriminate based on sexual orientation or gender identity without treating people differently on the basis of sex, and thus discrimination “because of sex.”
Bostock was wrongly decided from a textualist standpoint. For starters, there is no reason to believe that Title VII’s prohibition on discriminating “because of sex” was understood to bar all discrimination with a but-for connection to sex. Anyway, the but-for connection does not exist: discrimination against some sexual orientations (bisexuality, for example) and some gender identities (consider the “gender fluid” or “nonbinary”) does not have any but-for connection to sex; biological sex plays no role in determining whether someone exhibits these orientations or gender identities.
While the frustration with cases like Bostock is warranted, it hardly justifies abandoning textualism. Judges are people and people make mistakes. No matter what theory judges abide by, they will occasionally get cases wrong. Abandoning textualism in favor of something else will not fix this problem.
That brings me to the third source of frustration, which can and must be addressed: textualism is not worth very much unless it is aggressively employed. Doing law well requires correctly interpreting the law. But it requires more than that, too. Specifically, it requires the prudent exercise of discretion. Every day, the law calls on judges to exercise discretion. At the Supreme Court, for example, the Justices have complete discretion to decide what cases to take. They also have immense discretion to decide when to follow precedent and when—as in the important wins noted above—to overrule precedent. They have discretion to decide cases on narrow, case-specific grounds, or on broader, more-significant grounds. And perhaps of most significance in recent months, they have immense discretion to grant or deny “emergency” relief.
It is this discretionary step that the conservative legal movement has largely neglected to its peril. Textualism is necessary to good judging, but it is not close to sufficient; a Court that “correctly” decides cases on narrow grounds, without upsetting long-settled but badly flawed precedents, will not be much use in restoring the constitutional order. That is unacceptable for the conservative movement of today, which seeks to reverse, not just arrest, our national decline; a movement that wants to kneecap the administrative state will not be satisfied with a Court content merely to erect some hurdles. And a movement desirous of speedy change will not accept a legal philosophy that requires the Court to deny emergency relief while judges across the country impose lawless injunctions—even if that same Court, as is often the case, eventually gets around to reversing the injunctions on the ground that they are lawless.
However frustrating judicial timidity may be, however, we cannot address it by abandoning textualism. That would amount to abandoning the Constitution and the rule of law altogether. And abandonment will not solve the timidity issue anyway, as it is not textualism causing judges to be too timid. Judges who too-cautiously apply the law on its own terms will be equally cautious if asked to decide cases based on the common good, legislative intent, or something else.
The solution, then, is not to abandon textualism, but to insist on its aggressive application. This requires those of us outside the judiciary to insist on aggressive textualism. We must condemn timid textualism when we see it, and we must demand the appointment of textualists who will apply their principles aggressively. But the already-appointed textualist judges must do their part, too: the modern conservative movement is not going to insist on textualist judges if today’s textualists apply their principles timidly.
[1] Brief of Amicus Curiae Hon. Edwin Meese III in Support of Jurisdiction, Moe v. Yost, No. 2025-472 (Ohio).