Textualism
A theory of statutory interpretation holding that courts should determine a statute’s meaning from the text alone — using ordinary meaning, grammatical structure, and the statute as a whole — without resort to legislative history or purposes extrinsic to the text.
Elements / Test
Core textualist tools:
- Ordinary meaning: Words bear their plain, everyday meaning at time of enactment unless context demands otherwise
- Whole-act rule: Statute interpreted as a coherent whole; same term carries same meaning throughout
- Surplusage canon: Every word is presumed to have meaning; avoid interpretations that render words superfluous
- Ejusdem generis: General term at end of specific list includes only things similar in nature to the listed items
- Expressio unius: Expression of some things implies exclusion of others not mentioned
- Noscitur a sociis: Ambiguous word interpreted in light of surrounding words (Gustafson v. Alloyd)
- Absurdity canon: Text not followed only when result would be genuinely absurd (textualists apply narrowly)
What textualists exclude:
- Committee reports, floor debates, sponsor statements, conference reports
- Legislative purpose and intent beyond what is evident in text
- Pre-enactment history
Exceptions and Edge Cases
- New vs. old textualism: Scalia’s “new textualism” strictly excludes legislative history; older textualism was more flexible
- Absurdity: Even strict textualists allow some deviation from literal text when result is genuinely absurd (Green v. Bock Laundry)
- Term of art: Technical legal terms carry their legal meaning, not lay meaning
- Dynamic interpretation: Textualists debate whether ordinary meaning is fixed at enactment or evolves
Policy Rationale
- Democratic legitimacy: Only the enacted text is law; legislative history is not voted on
- Predictability: Text is publicly accessible; parties can plan around clear text
- Prevents manipulation: Legislators can game committee reports; text is harder to manipulate
- Judicial restraint: Judges should not substitute their view of purpose for Congress’s enacted words
Key Cases
| Case | Rule |
|---|---|
| Public Citizen v. U.S. Dept. of Justice (1988) | Debate between textualism (Kennedy) and purposivism (Brennan) |
| Yates v. United States (2015) | Fish debate — Ginsburg plurality used whole-act and contextual tools; Kagan dissent used textualist argument |
| King v. Burwell (2015) | Court interpreted ACA to achieve purpose despite textual argument to contrary; Roberts rejected “pure textualism” |
| Bostock v. Clayton County (2020) | Gorsuch textualist opinion holding Title VII’s “sex” includes sexual orientation |