Textualism is a method of statutory interpretation that asserts that a statute should be interpreted according to its plain meaning and not according to the intent of the legislature, the statutory purpose, or the legislative history. A textualist endeavors to give effect to the words of the Constitution and statutes. If the meaning of the words is clear, the judge goes no further. If they are ambiguous, the judge attempts to discern their meaning using well-developed rules of construction.

Whereas textualist approaches to constitutional interpretation focus solely on the text of the document, originalist approaches consider the meaning of the Constitution as understood by at least some segment of the populace at the time of the Founding. Originalists generally agree that the Constitution’s text had an “objectively identifiable” or public meaning at the time of the Founding that has not changed over time, and the task of judges and justices (and other responsible interpreters) is to construct this original meaning.

Textualism and constitutionalism are two distinct legal theories. Textualism is a formalist theory of interpretation that emphasizes the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as the intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law. On the other hand, constitutionalism is a political theory that emphasizes the importance of limiting government power by establishing a constitution that outlines the powers and duties of the government and protects individual rights. Constitutionalism is often associated with the rule of law, separation of powers, and the protection of individual rights and liberties. While textualism is a theory of interpretation, constitutionalism is a theory of governance. It is possible for a judge to be both a textualist and a constitutionalist, but the two theories are not interchangeable. For example, a judge who is a textualist may interpret the Constitution based solely on the text’s ordinary meaning, while a constitutionalist may interpret the Constitution based on its original meaning, the intentions of the framers, and the principles of constitutionalism.

Textualism appeals to many, but especially those who accept the fixed view of the constitution, coupled with a belief that a constitution is, principally, one important device through which citizens are protected from unwarranted state power, including unwarranted judicial power. Requiring that judges interpret constitutional provisions in light of the meaning of the constitution’s text respects the role of its creators (sometimes, but not always, the founders of the state) in fixing, on behalf of the community, the basic framework of government and the limits within which state power is to be exercised. Political decisions about that proper framework and its constituent limits have, on this theory, already been made in a proper forum by those in whose hands such decisions were rightly placed. Their decisions have been communicated and should not, lest stability and legitimacy be threatened, be subject to continuous revisiting and review, particularly by (typically unelected) judges who lack the authority enjoyed by the constitution’s authors. The discovery of textual meaning is (it is thought) a largely factual matter, requiring none of the moral and political reasoning appropriately undertaken by the creators of the constitution. If constitutional change is required, the constitution itself sets procedures through which such changes can be affected. Should these prove ineffective and yet change still be warranted, then the people, as the sovereign power underlying constitutional democracies, have the authority to abandon the constitution through revolution, peaceful or not, and to substitute something else. But so long as the constitution remains in force, the semantic content of its rules must be taken as governing all matters of constitutional law.

Despite its obvious appeal, Textualism – or as it is sometimes called, “strict constructionism”—faces a number of difficulties. First, semantic content is not always fully determinate or stable from one generation to the next. This is especially true of words and phrases like “equality,” “due process of law,” “fundamental justice,” “free and democratic society,” “freedom of religion,” and so on. These seem to lack the determinate and relatively stable semantic content of phrases like “five-year term” or “two-thirds majority.” The evaluative concepts expressed by the former are highly contestable politically, perhaps even “essentially contestable,” and their understanding tends to vary from one generation to the next. They therefore cannot serve the role suggested by the fixed view.

Textualism faces further difficulty. Even when the meaning of a word or phrase used in a constitution is constant and plain for all to see, it is not always the case that it is considered dispositive. For example, taken in terms of both its original and (perhaps different) contemporary meaning, the First Amendment of the American Constitution is clearly violated by a whole host of American laws, e.g., those proscribing incitement, perjury, and libel. Taken literally, the First Amendment renders unconstitutional any law that in any way restricts freedom of speech. If so, then it is unconstitutional in the United States to punish untruthful witnesses, prevent primary school teachers from uttering vicious racial slurs against their minority students, or convict those who incite crowds to violence. But such state actions have never been understood to violate the First Amendment, leading to the inevitable conclusion that more than semantic meaning governs its interpretation and application. And this is generally, if not universally, true of modern states and their constitutions. But if more than meaning governs, what else counts? The most obvious choice, especially for those attracted to the fixed view, are the “intentions” of the framers. In response to the suggestion that the American First Amendment prohibits laws against perjury, a defender of the fixed view is likely to reply: “But that can’t possibly be what the framers had in mind—what they intended—in choosing the words they did.” This leads us to a second type of interpretive theory, originalism, which focuses not on word meaning but on the intentions of those by whose actions the constitution’s various provisions came into existence.