British Journal of American Legal Studies 2013
43 Pages Posted: 30 Apr 2013 Last revised: 1 May 2013
Date Written: April 25, 2013
This article concerns “Textualism,” or rather, “Textualisms,” and interpretation of the United States Constitution. Uncountable numbers of scholars and commentators use the term “textualism” as a singular noun, implicitly or explicitly, suggesting that one “textualism” exists. Sometimes commentators support “textualism” as the one true interpretational methodology. Those who support “textualism” argue that interpretation of the United States Constitution should rely on “textualism” because of that interpretational methodology's virtue of limiting the discretion of the interpreter. “Textualism,” so supporters argue, keeps judges and justices from each creating his or her own version of the Constitution. This article seeks to demonstrate the existence of a multitude of different “textualisms.” The article notes the dozens of different types of “textualism,” each version of which can be chosen by any judge or justice as a methodology for interpreting the Constitution. If different types of “textualism” do indeed exist, then (any particular version of) “textualism” becomes nothing more than a personal choice for a constitutional interpreter. “Textualism,” so the article urges, becomes “texutalisms,” and loses all power to constrain the personal choice of justices as to the meaning of the Constitution.
Keywords: textualism, constitutional law, constitutional interpretation, constitutional theory
Suggested Citation: Suggested Citation
Durden, Stephen, Textualisms (April 25, 2013). British Journal of American Legal Studies 2013 . Available at SSRN: https://ssrn.com/abstract=2256679