Over the past few decades, textualism—which holds that textual analysis best reveals a legal provision’s meaning—has established itself as the interpretive theory in American courts. It has drawn its strength from formalism emphasized by champions such as the late Justice Antonin Scalia, combined with what Judge Neomi Rao has called textualism’s “political morality.” Scalia regularly pointed out that a law’s words are the “objectified” evidence of its meaning, and Judge Rao has elaborated that focusing on such objectified evidence “follows naturally from the moral commitments at the heart of our constitutional system of government.” Textualism has become so dominant that it’s sometimes hard to remember how debates over interpretation sounded before they were waged on textualist grounds.
Tal Fortgang is a contributing writer for The Dispatch and legal policy fellow at the Manhattan Institute.
