The Modes of Constitutional Analysis: Textualism (Part 2)

"This Legal Sidebar Post is the second in a nine-part series that discusses certain “methods” or “modes” of analysis that the Supreme Court has employed to determine the meaning of a provision within the Constitution. (For additional background on this topic and citations to relevant sources, please see CRS Report R45129, Modes of Constitutional Interpretation.)

Textualism is a mode of legal interpretation that focuses on the plain meaning of a legal document’s text. Textualism usually emphasizes how the terms in the Constitution would be understood by people at the time the terms were ratified, as well as the context in which those terms appear. Textualists usually believe there is an objective meaning of the text, and they do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments when deriving meaning from the text. In other words, they are concerned primarily with the plain, or popular, meaning of the Constitution’s text. Textualists are generally unconcerned with a decision’s practical consequences; rather, they are wary of the Court acting to refine or revise constitutional texts.

The Justices frequently rely on the text in conjunction with other methods of constitutional interpretation. The Supreme Court will often look to the text first before consulting other potential sources of meaning to resolve textual ambiguities or to answer fundamental questions of constitutional law not addressed in the text. For example, in Trop v. Dulles, a plurality of the Court held that the Eighth Amendment prohibited the government from revoking the citizenship of a U.S. citizen as a punishment. When determining that a punishment that did not involve physical mistreatment violated the Constitution, the Court first looked briefly to the Eighth Amendment’s text, emphasizing that the “exact scope” of the phrase “cruel and unusual punishment” had not been “detailed by [the] Court.” The plurality then turned to other modes of interpretation, such as moral reasoning and historical practices, in deciding the case.

The Trop plurality’s use of textualism in combination with other interpretive methods is distinguishable from a stricter textualist approach espoused most famously by Justice Hugo Black. Consistent with his view that those interpreting the Constitution should look no further than the literal meaning of its words, Justice Black contended that the First Amendment’s text—which states “Congress shall make no law . . . abridging the freedom of speech, or of the press”—absolutely forbids Congress from enacting any law that would curtail these rights..."
Constitutional Analysis