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Modern Textualism: by Ishika Dikshit

This document discusses the legal theory of textualism. [1] Textualism is a method of statutory interpretation that focuses on the plain meaning of the text. [2] Modern textualism arose in the 1980s as a response to purposivism, which considers legislative intent. [3] Notable textualists like Justice Scalia argued courts should only consider the text itself and not sources like legislative history. The document then discusses the history and application of textualism in India.

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Ishika
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240 views17 pages

Modern Textualism: by Ishika Dikshit

This document discusses the legal theory of textualism. [1] Textualism is a method of statutory interpretation that focuses on the plain meaning of the text. [2] Modern textualism arose in the 1980s as a response to purposivism, which considers legislative intent. [3] Notable textualists like Justice Scalia argued courts should only consider the text itself and not sources like legislative history. The document then discusses the history and application of textualism in India.

Uploaded by

Ishika
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MODERN TEXTUALISM

By Ishika Dikshit
Introduction

 What is Textualism?

• According to the Oxford English Dictionary the word "textualism" was first
used by Mark Pattison in 1863 to criticize Puritan theology.

• Textualism is a method of statutory interpretation whereby the plain text of


a statute is used to determine the meaning of the legislation.

• Textualism is a Formalist theory in which the interpretation of the law is


primarily based on the ordinary meaning of the legal text, where no
consideration is given to non-textual sources, such as intention of the law
when passed, the problem it was intended to remedy, or significant
questions regarding the justice or rectitude of the law.
Where did it start?

 Modern textualism arose in the 1980s as a response to the dominant form


of statutory interpretation: purposivism.

 Textualists claimed to offer an approach that would be more faithful to the


words actually used by the legislature and also better constrain the federal
judiciary.

 Textualists objected primarily to what they called “strong purposivism”


— the notion that the “spirit” could prevail over the “letter” of a statute.

Associate Justice of the United States Antonin Scalia

•Was considered to be a textualist and an originalist. He noted in his book (‘A Matter of
Interpretation”) – textualists look for an ‘objectified’ intent from the language of the
provision itself.
•He argued against judges treating the United States Constitution as a Living
Constitution.

"It is the law that governs, not the intent of the lawgiver."


Oliver Wendell Holmes Jr.,

He was an American jurist who served as an Associate Justice of the Supreme Court of
the United States from 1902 to 1932, although not a textualist himself, well-captured this
philosophy, and its rejection of intentionalism: "We ask, not what this man meant, but
what those words would mean in the mouth of a normal speaker of English, using them
in the circumstances in which they were used ... We do not inquire what the legislature
meant; we ask only what the statutes mean."
Reasoning
Textualist judges have contended, with much practical impact, that courts
should not treat committee reports or sponsors' statements as authoritative
evidence of legislative intent. These judges base their resistance to that
interpretive practice on two major premises:

• first, that a certain member legislature has no "genuine" collective intent


concerning the proper resolution of statutory ambiguity (and that, even if it
did, there would be no reliable basis for equating the views of a committee
or sponsor with the "intent" of the Parliament as a whole);

• second, that giving weight to legislative history offends the constitutionally


mandated process of bicameralism and presentment.
Textualism is not consistent Textualism is often erroneously
with the Plain Meaning Rule. conflated with originalism.

• The plain meaning of a word is • Originalism is the view that the


determined by its dictionary Constitution should be interpreted
definition, its placement in the according to its original meaning
body of the text, and its common
• Courts must choose principles
usage at the time the statute was
written. which they are willing to apply
neutrally to all cases that may fairly
• A judge that relies solely on the
be said to fall within them, which, in
literal or plain meaning of a text
his opinion, were essential if the
does not consider reference to
Supreme Court was not to be a
common public understanding
naked power organ.
or context.

Textualists do not, generally, accept the authority


of the Courts to "refine" statutes.
Example

• As an illustrative example, Justice Scalia refers to a case in which the law


provided for a longer sentence when the defendant "uses a firearm" "during
and in relation to" a "drug trafficking crime."

• In the case, the defendant had offered to trade an unloaded gun as barter
for cocaine, and the majority (wrongly, in his view) took this meeting the
standard for the enhanced penalty.

• He writes that "a proper textualist" would have decided differently: "The
phrase 'uses a gun' fairly connoted use of a gun for what guns are normally
used for, that is, as a weapon. As I put the point in my dissent, when you ask
someone, 'Do you use a cane?' you are not inquiring whether he has hung
his grandfather's antique cane as a decoration in the hallway."
Interpretative Approaches in India
• Phase I – where textualism was the dominant interpretative
approach

• Phase II – Structural/purposive was the dominant interpretative


approach

• Phase III – result-oriented decision making using both the above


approaches is dominant
AK Gopalan V State of Madras (AIR 1950 SC 27) was one of the
early decisions in which the Court was called upon to interpret the
fundamental rights.

• Habeas Corpus petition filed by Communist leader detained under


preventive detention legislation claiming that the legislation was
inconsistent with the Article 19, 21 and 22 (the protection against arrest and
detention) of the Constitution.

• Interpretative questions before the SC: What did the expression ‘procedure
established by law’ mean? It could either have meant any procedure that
was validly enacted into primary legislation by Parliament (which would
result in Article 21 being a safeguard only against executive action), or could
include a substantive component, resembling the ‘due process’ clauses of
the US Constitution. Secondly, what was the interrelationship between
Articles 19, 21, and 22 of the Constitution, which, at first glance, appeared to
cover similar ground?
• Constitutional history had something to say on these questions.
> On the first question, there was plenty of evidence to suggest that the
framers had adopted the phrase ‘procedure established by law’ instead of
the American ‘due process of law’.
> On the second question, evidence from the report of the Drafting
Committee of the Constituent Assembly suggested that Article 21 was
intended to cover separate territory from Article 19.
• The judgments of the majority and minority agreed that this history was
irrelevant in construing the constitutional provisions.
• Kania CJ, for the majority, construed the constitutional text based on its
textual meaning. He held that the expression ‘procedure established by law’
must mean, based on its ordinary interpretation, the procedure prescribed
by the statutory law of the State. On the second question, he decided that
Article 19,21, and 22 covered entirely different subject matter, and were to
be read as separate codes
Sri Sankari Prasad Singh Deo vs Union of India

• SC adopted a textualist approach, finding that any intended limitations


on the power to amend fundamental rights would have been clearly
expressed in Articles 13(2) and 368.

• As Patanjali Sastri J noted: "We find it, however, difficult, in the


absence of a clear indication to the contrary, to suppose that they [the
framers] also intended to make those [fundamental] rights immune
from constitutional amendment....the terms of Article 368 are perfectly
general and empower Parliament to amend the Constitution, without
any exception whatever
Sajjan Singh v State of Rajasthan (AIR 1965 SC 845)

• Gajendragadkar CJ adopted a similar textualist approach, holding that if


the framers had intended to restrict future amendments to Part III, they
would have made a specific provision manifesting that intention. He also
categorically rejected a purposive approach to interpreting Article 368,
noting that it was illegitimate to construe that provision ‘on any
theoretical concept of political science’.
Golak Nath V State of Punjab (AIR 1967 SC1643)

Majority of the SC reversed its position on the amendability of fundamental rights

• Textualist approach adopted in the majority as well as the minority opinions.


The arguments did not center on how to interpret the Constitution: all the
judges seemed to agree that textualism was the pre-eminent approach. Rather,
differences between the majority and the minority hinged on what the outcome
of a legitimate textualist interpretation would be.

• In the majority, Subba Rao J held that the open-ended definition of the word
‘law’ under Article 13 rendered the term wide enough to include constitutional
amendments. Further, the marginal note to Article 368 described the Article as
only setting out the ‘procedure for amendment of the Constitution; Parliament’s
power to amend the Constitution did not emanate from that provision.
Therefore, Parliaments power to amend the Constitution was subject to Part III.
Conclusion
I remain skeptical that Textualism has an “inexorable logic” as radical as is claimed.

It can consistently incorporate more insights from other methodologies than it is


given credit for.

Even if the logic of Textualism is as radical as is describes, it does not necessarily


follow that it will “work itself pure” in a judiciary filled with judges who have far less
interest in grand theories of interpretation and methodological consistency than
academics do. None of this proves that Textualism is the best possible theory of
interpretation.

In an ideologically diverse judiciary and legal profession, it is unlikely that any the
Textualism theory will command a clear consensus. Textualism may never
definitively triumph over its rivals. But it is nonetheless here to stay as a long
standing player in the process.

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