Textualism: The Ultimate Guide to How Judges Read the Law

LEGAL DISCLAIMER: This article provides general, informational content for educational purposes only. It is not a substitute for professional legal advice from a qualified attorney. Always consult with a lawyer for guidance on your specific legal situation.

Imagine you're building a complex piece of furniture from a kit. You have a detailed instruction manual. Halfway through, you find a part that doesn't seem to fit where the manual says it should. What do you do? Do you try to guess what the designer was *thinking* when they created the manual? Do you call their customer service line and ask what they *meant*? Or do you trust that the words on the page are what matter, and you must follow them exactly as written, even if the result seems a bit odd? Textualism is the legal philosophy that says judges should act like the person following the manual exactly. When they interpret a law, they should focus almost exclusively on the ordinary meaning of the words written in that law—the “text.” They shouldn't be concerned with what Congress *intended* to do, what problem they were trying to solve, or what would be the “best” outcome for society. To a textualist, the only question is: what do the words of the law say? This seemingly simple idea has become one of the most powerful and controversial forces in American law, profoundly shaping your rights and the power of your government.

• Key Takeaways At-a-Glance:
  • The Words Are the Law: Textualism is a method of statutory_interpretation that holds that a law’s meaning is determined by the ordinary, common meaning of the text itself, not by the unstated intentions of the legislators who wrote it.
  • Impacts Everyone: How a judge applies textualism can determine the outcome of your case, whether it involves your employment rights, your business contracts, environmental regulations, or even your second_amendment rights.
  • Focus on Process, Not Results: Textualism is a neutral tool for reading the law; it can lead to results that are considered politically “liberal” just as often as it can lead to “conservative” ones, making it a highly debated but influential judicial philosophy.

While the idea of focusing on a law's text is as old as law itself, textualism as a formal, dominant philosophy is a relatively modern development. For much of the 20th century, the prevailing method of interpretation was purposivism. Purposivist judges believed their job was to figure out the *purpose* or *goal* of a law and interpret it in a way that best achieved that goal, even if it meant stretching the literal words. They would often dive deep into legislative_history—committee reports, floor debates, and early drafts—to find clues about what Congress was trying to accomplish. This approach came under heavy fire in the 1970s and 1980s. Critics, most notably then-Professor and later Supreme Court Justice Antonin Scalia, argued that this “purpose-driven” approach was a recipe for judicial activism. They contended that:

• Legislative intent is a myth: Trying to find one single “intent” from 535 members of Congress, all with different motivations, is impossible. Whose intent matters? The sponsor's? The committee chair's? The member who voted for it just to get a bridge built in their district?
• It's undemocratic: If judges can “correct” a law to fit what they think its purpose should be, they are essentially re-writing the law, a power that belongs to the elected legislature, not the unelected judiciary. This violates the principle of the separation_of_powers.
• It's unpredictable: Relying on the vast and often contradictory swamp of legislative history allows judges to cherry-pick quotes to support any conclusion they want, making the law less stable and predictable for ordinary citizens and businesses.

In response, Scalia and other legal thinkers championed a renewed focus on the text. This “new textualism” argued that judges should be faithful agents of Congress by being faithful to the words Congress actually passed into law. This philosophy gained significant traction, and by the early 21st century, it had become a major, if not the dominant, force on the supreme_court_of_the_united_states and in federal courts across the country. Today, even judges who don't call themselves textualists feel compelled to start their analysis with the text of the law, a testament to textualism's profound influence.

Textualists aren't just reading words in a vacuum. They use a set of long-established rules and principles of interpretation known as the canons of construction. These are like the grammar rules of legal language, helping judges decipher what the text means in a consistent and principled way. While there are dozens of canons, some of the most important include:

• The Plain Meaning Rule: This is the starting point for all textualism. It states that words should be given their ordinary, everyday meaning unless the statute explicitly defines them differently.
• The Whole Act Rule: You can't understand a single word or phrase by itself. A textualist must read a word in the context of the entire section, chapter, and statute it's a part of.
• Ejusdem Generis (Latin for “of the same kind”): When a law lists specific items followed by a general term, the general term is understood to include only things of the same kind as the specific items. For example, if a law bans “cars, trucks, motorcycles, and other motor vehicles” from a park, a court would likely say “other motor vehicles” doesn't include a motorized wheelchair, because it's not of the same kind as the other items listed.
• Noscitur a Sociis (Latin for “it is known by its associates”): The meaning of a questionable word can be determined by the words around it. In the phrase “rip, tear, or puncture,” the word “puncture” would be understood to mean a small hole made by a sharp object, not a flat tire, because of the company it keeps.
• Expressio Unius Est Exclusio Alterius (Latin for “the express mention of one thing excludes others”): If a law specifically lists certain things, it is presumed that it intentionally excluded things not on the list. If a sign says “No dogs or cats,” this canon suggests that other pets, like hamsters or parrots, are permitted.

These tools are designed to constrain judges and make their decisions more objective and predictable than trying to guess at legislative intent.

The influence of a judicial philosophy isn't uniform. While textualism is hugely influential in federal courts, its adoption varies at the state level and in different areas of law. This matters to you because the philosophy of the judge hearing your case can dramatically change the outcome.

Textualism is more than just “reading the words.” It's a disciplined approach built on several core principles that guide how a judge analyzes a law.

This is the foundational pillar. For a textualist, the analysis begins and, in most cases, ends with the text that was enacted into law. The words on the page are the law. They are not evidence of the law; they *are* the law. This means that if the text is clear, the inquiry is over, even if the result seems strange or doesn't solve the social problem a legislator might have been thinking about.

• Hypothetical Example: Imagine Congress passes the “Park Safety Act,” which states, “No vehicles in the park.” A person drives an ambulance into the park to save someone's life. A strict textualist might conclude that the ambulance, being a “vehicle,” is technically violating the law. The text is unambiguous. A textualist would argue that if Congress wanted to create an exception for emergencies, it should have written one. It is not the judge's job to invent it. (Note: Many textualists would use other tools, like the absurdity doctrine, to avoid this outcome, but it illustrates the principle's core logic).

What matters is not what the writers of the law *intended* to say, but what the words they used would mean to a reasonable, ordinary person at the time the law was written. This is called the law's original public meaning. Textualists reject the idea of digging through legislative history to find some “secret” or “true” meaning.

• Hypothetical Example: A 1950 law sets a fine for “broadcasting obscene material over the airwaves.” Today, someone streams obscene material over the internet. A textualist judge would ask what “broadcasting” and “airwaves” meant to an ordinary person in 1950. Since the internet didn't exist, they would likely conclude the law doesn't apply. The judge isn't concerned with whether the 1950s Congress *would have wanted* to ban this new technology; they only care about the words Congress actually used.

No word is an island. Textualists insist that words must be interpreted within the context of the entire statute. This prevents parties from plucking a single word or phrase out of context to support their argument. The structure of the law, the chapter titles, and the relationship between different sections all provide clues to a word's meaning.

• Hypothetical Example: A tax law provides a credit for “educational expenses, including tuition, books, and lab fees.” A student tries to claim a credit for the cost of their dorm room, arguing it's an “educational expense.” A textualist would look at the specific examples provided—“tuition, books, and lab fees”—and conclude that the general term “educational expenses” is limited to academic costs, not living costs. The context provided by the specific examples defines the general term.

This is one of the most significant departures from purposivism. Textualists argue that legislative_history is unreliable, undemocratic, and often manipulated. A staffer might insert a sentence into a committee report hoping a future judge will see it, even though that sentence was never voted on by the full Congress. Because it wasn't approved through the constitutionally required process of bicameralism (passage by both houses) and presentment (signing by the President), it is not law and should not be used to interpret the law.

Understanding textualism requires knowing the people who have championed, criticized, and shaped it.

• Justice Antonin Scalia (Proponent): The intellectual father of modern textualism. His witty, forceful, and brilliant opinions and writings transformed textualism from a niche academic theory into a dominant force in American law. He famously co-authored a book, *Reading Law: The Interpretation of Legal Texts*, which is the modern bible of textualism.
• Justice Neil Gorsuch (Proponent): A former clerk for Justice Scalia, Justice Gorsuch is a leading textualist on the current Supreme Court. His majority opinion in `bostock_v_clayton_county` is considered a landmark textualist decision, demonstrating that the philosophy can lead to outcomes surprising to political observers.
• Justice Elena Kagan (Pragmatic User): Often considered part of the Court's “liberal” wing, Justice Kagan has famously said, “We're all textualists now.” While she is more willing than Scalia or Gorsuch to consider purpose and legislative history, her focus on starting with a rigorous textual analysis shows how deeply the philosophy has permeated the judiciary.
• Justice Stephen Breyer (Retired Critic): The leading intellectual opponent of textualism on the Supreme Court for decades. Justice Breyer was a champion of purposivism, arguing that judges must consider a law's purpose and the real-world consequences of their decisions to make law work for people. His debates with Justice Scalia in court opinions are legendary.

One of the best ways to understand textualism is to see how it compares to other major interpretive theories. These are not just academic debates; the choice of philosophy can change lives.

This is one of the most common points of confusion. Textualism and originalism are related, but distinct, ideas. They are often used by the same judges (like Scalia and Thomas), but they apply to different things.

In short: Textualism is for interpreting laws, Originalism is for interpreting the Constitution. A judge can be a textualist when reading a tax code but an originalist when reading the first_amendment.

This is the main event in the world of statutory interpretation. It's a fundamental disagreement about the role of a judge.

• Textualism: The judge is a faithful agent of the legislature. Their job is to enforce the deal that was struck—the exact words that were voted on. The text is the law.
• Purposivism: The judge is a partner of the legislature. Their job is to understand the problem the legislature was trying to solve and interpret the law to best address that problem. The purpose is the law.

Let's use a classic example: the case of *United States v. Marshall*. A law set a mandatory minimum sentence based on the “mixture or substance containing a detectable amount” of LSD. The problem was that LSD is typically dropped onto blotter paper, which is much heavier than the drug itself. Did “mixture or substance” mean the weight of the pure drug, or the weight of the drug *plus* the paper?

• A purposivist judge would say the purpose of the law was to punish big-time drug dealers more harshly than small-time users. Since the amount of pure LSD is a better indicator of the scale of the operation, they would rule that only the weight of the pure drug counts.
• A textualist judge (as the majority did in the actual case) would say the ordinary meaning of “mixture or substance” containing LSD clearly includes the blotter paper, which is mixed with the drug. The law might be poorly written, but the text is the text. They ruled that the weight of the paper plus the drug should be used, leading to much longer sentences.

Imagine you are fired from your job. You believe it was because of your age, which is illegal under the `age_discrimination_in_employment_act`. The law protects workers who are 40 and over. Your employer argues that while your age was a factor, the main reason was poor performance. The law says employers cannot discriminate “because of” age. What does “because of” mean?

• A purposivist judge might look at the law's purpose—to eradicate age discrimination—and conclude that if age was a *motivating factor* at all, even if not the only one, then the law was violated.
• A textualist judge (as the Supreme Court did in *Gross v. FBL Financial Services*) might conclude that the ordinary meaning of “because of” means it must be the *sole reason* or the “but-for” cause. Meaning, you would not have been fired *but for* your age. This is a much harder standard for an employee to prove.

The judge's choice of philosophy directly changes your chances of winning the case.

• The Backstory: Gerald Bostock was fired from his job after his employer learned he had joined a gay softball league. He sued, arguing he was fired because of his sex, which is forbidden by `title_vii_of_the_civil_rights_act_of_1964`. Title VII makes it illegal to discriminate “because of… sex.”
• The Legal Question: Does discriminating against someone for being gay or transgender count as discriminating “because of… sex”?
• The Court's Holding (written by Justice Gorsuch): In a 6-3 decision, the Court held yes. Applying a purely textualist analysis, Gorsuch reasoned that it is impossible to discriminate against someone for being gay or transgender without taking their sex into account. For example, if an employer fires a man for being attracted to men, but would not fire a woman for being attracted to men, the employer is making a decision based on the man's sex. The motivation (animus against gay people) doesn't matter; what matters is the mechanics of the discrimination.
• Impact on You: This ruling extended federal workplace protections to millions of LGBTQ+ Americans. It is the single most important example of how textualism is a neutral interpretive tool that can lead to outcomes applauded by political progressives.

• The Backstory: Washington D.C. had a law that effectively banned private handgun possession in the home. Dick Heller, a D.C. special police officer, wanted to keep a handgun at home for self-defense and sued.
• The Legal Question: Does the second_amendment—which reads “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”—protect an individual's right to own a gun for private use, or does it only protect a right related to militia service?
• The Court's Holding (written by Justice Scalia): In a 5-4 decision, the Court used a combined textualist and originalist approach. Scalia broke down the text, arguing that “the right of the people” refers to an individual right throughout the Constitution, and that “keep and bear Arms” was a common phrase at the time referring to private use. He concluded the first part (“A well regulated Militia…”) was a prefatory clause that announced a purpose but did not limit the core right described in the main operative clause.
• Impact on You: This case established for the first time that the Second Amendment protects an individual's right to own a handgun in the home for self-defense, striking down D.C.'s law and fundamentally changing the landscape of gun control litigation in America.

• The Backstory: A federal law imposed a mandatory five-year prison sentence on anyone who “uses or carries a firearm” during a drug trafficking crime. Frank Muscarello was arrested with drugs in his truck, and in the locked glove compartment, there was a handgun.
• The Legal Question: Does having a gun in a locked glove compartment count as “carrying a firearm”?
• The Court's Holding (written by Justice Breyer): The majority, taking a purposivist approach, said yes. Breyer argued that we “carry” things in cars all the time (e.g., carrying groceries). He believed Congress's purpose was to combat the danger of guns in drug deals, and a gun in a car is dangerous.
• The Dissent (written by Justice Ginsburg): Justice Ginsburg, joined by Scalia, wrote a classic textualist dissent. She argued that in the context of a weapon, the ordinary meaning of “carry” implies holding it or having it on your person, ready for use. You “carry” a briefcase, but you “transport” a trunk. She argued the majority's interpretation stretched the word beyond its common meaning.
• Impact on You: This case is a perfect illustration of the textualist-purposivist clash. It shows how the same simple phrase—“carries a firearm”—can be interpreted in two completely different ways, with a five-year prison sentence riding on the outcome.

Textualism is not static. A new and controversial application is the major questions doctrine. This is a rule that says if a federal agency (like the `environmental_protection_agency` or `centers_for_disease_control_and_prevention`) wants to issue a regulation with vast economic and political significance, it must have crystal-clear, explicit authorization from Congress. Vague or general language in a statute is not enough. Critics argue this doctrine is just judicial activism in a textualist disguise, allowing courts to strike down regulations they dislike. Proponents argue it's a form of textualism that respects the separation_of_powers by ensuring that only the elected Congress—not unelected bureaucrats—makes the biggest decisions. This debate will be central to legal battles over climate change, healthcare, and technology regulation for years to come.

The future of textualism may lie in technology. A new field called corpus linguistics is emerging as a powerful tool for textualist judges. It involves using massive, searchable databases of text (like books, newspapers, and articles from a specific time period) to determine the objective, ordinary meaning of a word or phrase when a law was passed. Instead of just relying on dictionaries or their own intuition, judges can now use data to see how a word like “vehicle” was actually used in the 19th century. This promises a more objective, data-driven form of textualism. However, it also raises new questions: Which database is the right one? How do you account for slang or specialized meanings? As this technology develops, it will continue to shape the ongoing debate about the best way to read the law.

• canon_of_construction: A time-tested rule or guideline that judges use to interpret the text of a law in a consistent way.
• legislative_history: The collection of documents produced by a legislature during the drafting of a bill, such as committee reports and floor debates.
• living_constitutionalism: The theory that the Constitution should be interpreted in light of evolving societal values and standards, not just its original meaning.
• original_meaning: The interpretation of a law based on what the public would have understood its words to mean at the time it was written.
• originalism: The judicial philosophy that the Constitution should be interpreted according to its original meaning or the intent of its framers.
• plain_meaning_rule: The principle that if the words of a law are clear and unambiguous, their ordinary meaning must be applied.
• purposivism: The judicial philosophy that laws should be interpreted in a way that best achieves the overall goal or purpose the legislature had in mind.
• separation_of_powers: The constitutional division of governmental power among the legislative, executive, and judicial branches.
• statutory_interpretation: The process by which courts read, analyze, and apply laws (statutes).
• strict_constructionism: A term often confused with textualism, but it more accurately refers to a narrow, literal reading of a text, often without regard to context. Most textualists reject this label.

• `statutory_interpretation`
• `originalism`
• `purposivism`
• `supreme_court_of_the_united_states`
• `separation_of_powers`
• `antonin_scalia`
• `bostock_v_clayton_county`