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The Word “Textualist” is too Vague
Andrew Hyman

In this big world, there are both “textualist originalists” and “textualist nonoriginalists,” who are very different from each other.  A textualist nonoriginalist will read a phrase in the law, and will pick out which meanings of those words strike him as fair (or preferable) in context of the surrounding words.  The nonoriginalist textualist will thus often discard the sense in which the public originally understood how that law actually employed those words.  

For example, the Third Amendment to the U.S. Constitution says, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”  A recognized meaning of the verb “quarter” has for centuries been to lodge in a specified place, but another recognized meaning of this verb has for centuries been to cut an executed person into four parts.  A textualist nonoriginalist will feel free to use the latter sense if he feels it would be unfair to jeopardize military success by giving excessive rights to homeowners.  A textualist originalist will instead look to the original public understanding to see which sense of the verb “quarter” was likely understood by the public, and that original sense of course has nothing to do with executions, although it is true that executions do occur in the military, and occurred more commonly in the eighteenth century than they do today.  This language in the Third Amendment is an extreme example, but there are many other examples of textualist nonoriginalism that are not so extreme.  

Consider the word “due” in the Fifth Amendment; it might be construed by a textualist nonoriginalist to mean “owed according to natural law,” whereas the original public meaning of that word in context was undoubtedly “owed according to the law of the land.”  Millions of other examples exist of how a textualist originalist will behave differently from a textualist nonoriginalist, because the latter sees much more ambiguity in the legal text.  They both look to the text and are governed by the text, but behave in different ways.  So let’s not lump these two kinds of textualists together.  

Co-blogger Mike Ramsey wrote here in 2011 that non-originalist textualism adheres to the “plain, present, public meaning of [the] constitutional terms” rather than their original meaning.  That may sometimes be true, but not always.  A textualist non-originalist may also pick and choose among very old definitions, paying little or no regard to which definition was understood by the voting public to be applicable.

James Madison recognized the absurdity of using present-day definitions to interpret prior-day texts.  He wrote on March 10, 1826: “In the exposition of laws, and even of Constitutions, how many important errors may be produced by mere innovations in the use of words and phrases, if not controllable by a recurrence to the original, and authentic meaning attached to them.”  So we need to treat the language used by lawmakers as a foreign language that must be translated into present-day language.  I take this to be the point that Mike Ramsey was making.  

But Madison crucially added on March 1, 1833 that the greatest difficulty with using a foreign language “is in selecting the appropriate word or phrase among those differing in the shades of meaning, and where the meaning may be essentially varied by the particular application of them.  Hence the mistakes sometimes ludicrous in the use of a foreign language, imperfectly understood; as in the case of the Frenchman, who finding in the Dictionary that pickle meant to preserve, took leave of his friends with a God pickle you."  Hahaha.  Seriously, Madison had an excellent point here about interpreting laws; he wasn't always correct about everything, but surely he correctly understood that no dictionary (not even a very old one) provides judges with a buffet selection according to whichever sense the judge likes best within the weak constraints of the law's context and structure.  An originalist textualist will not treat old dictionaries like buffet meals, but instead will use them to help find the original meaning.