So What Really is Textualism?

Scalia, in A Matter of Interpretation, makes a case for textualism. When judges interpret existing statutes based on legislative intent rather than statutory text, they will inevitably invent text rather than finding intent. Scalia maintains that a judge’s “best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean”, when told to decide “not on the basis of what the legislature said, but on the basis of what it meant” (17). And to this, he says, textualism is the answer. But does it really solve this problem? 

Scalia says that “the text is the law, and it is the text that must be observed” (22). But is it possible to sustain a standard of pure textualism? Scalia does reject strict constructionism, asserting that text “should be construed reasonably, to contain all that it fairly means” (23). These qualities, reasonable and fair, are not properties of the text itself – they are judgements inserted by the reader; and different readers offer different judgements. 

Scalia’s dissent in Smith v. United States (cited in the footnotes), he argues that “[using] a firearm” connotes using a gun “for what guns are normally used for, that is, as a weapon” (23). Scalia uses contextual inference about the purpose of the firearm that is not nearly extractable from the text alone. It requires the judgement of the statute itself – which seems to be exactly the kind of reasoning he prohibits elsewhere in his argument. 

I believe that a more defensible claim that Scalia could have made is not that textualism eliminates judicial discretion, but channels it more legitimately. However, when he discusses how Holy Trinity was wrong because “the act was within the letter of the statute, and was therefore within the statute: end of case” (20), his confidence is the problem. “End of case” assumes that the text is clear – but Scalia’s Smith dissent shows that it’s not unfounded to identify what words fairly connote, and how the reasonable person would understand them. The judge himself whom Scalia warns us about, the one who “devises out of the brilliance of one's own mind those laws that ought to govern mankind” (7), does not disappear with Scalia’s construction of textualism–he just speaks a little bit less. 

 

Comments

  1. Paul HurleyApril 16, 2026 at 10:14 AM

    Interesting discussion of both Smith and Holy Trinity. The only place I would take issue here concerns your suggestion that Scalia's textualism precludes "contextual inference about the purpose of the firearm that is not nearly extractable from the text alone." Scalia constantly refers to dictionary definitions, dominant theories at the time, etc., to identify the reasonable construction of the text. The canons themselves are not extractable from the text along, but need to be applied to interpret it reasonably. And as Georgia, et al suggest, the textualist approach, for Scalia, is vindicated by the appeal to the place of the judiciary in a democratic government committed to the separation of powers. So textualism can't limit interpretation to what is in the sense you suggest extractable from the text, can it? Thanks again for focusing on this critical point!

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