Notes on Textualism and Originalism

The Search for a Neutral Argument

• The need for a coherent way to argue against judicial decisions without appearing politically biased was identified.
• The goal was to find a neutral-seeming approach, avoiding the appearance of partisan disagreement (i.e., right vs. left).

Activist Judges vs. Neutral Judging

• The strategy that emerged was to frame certain judges as "activists" rather than neutral arbiters of the law.
• The core idea of neutral judging emphasizes interpreting statutes and the Constitution by:
  • Examining the actual words (textualism).
  • Determining the original meaning at the time of adoption (originalism).

Textualism

• Textualism: Focuses on the literal text of legal documents (statutes, constitutions).
  • Judges should look at the ordinary meaning of the words used.
  • Avoid interpreting based on external considerations, intentions of drafters, or potential consequences.

Originalism

• Originalism: Interprets the Constitution based on the understanding of its framers or the public at the time of ratification.
  • Determines the fixed meaning at the point of adoption.
  • Seeks to prevent interpretations that reflect modern values or political agendas.

The Rise of Textualism and Originalism

• Late 1980s and early 1990s: Textualism and originalism began to gain prominence.
• Increasingly used by the Supreme Court in dealing with complex statutory and constitutional questions.

Influence of Republican Appointments

• The growing influence of textualism and originalism is linked to Republican presidential appointments to the Supreme Court.
• Presidents like Ronald Reagan, George H.W. Bush, George W. Bush, and Donald Trump appointed justices favoring these approaches.