Unoriginal Textualism

58 Pages Posted: 26 Aug 2021 Last revised: 31 Aug 2021

See all articles by Frederick Schauer

Frederick Schauer

University of Virginia School of Law

Date Written: August 26, 2021

Abstract

The burgeoning debates about constitutional interpretation show no signs of abating. With surprisingly few exceptions, however, those debates involve a contrast between textualism understood as some form of originalism, on the one hand, and various varieties of less textually focused living constitutionalism, on the other. In conflating textualism with originalism, however, the existing debates ignore the possibility of a non-originalist textualism – a textualism tethered not to original intent and not to original public meaning but, instead, to contemporary public meaning – public meaning now. This article explains the plausibility of just such an “unoriginal” textualism and argues that it might serve the guidance and constraint functions of a constitution better than any of the alternatives now on offer.

Keywords: constitutional interpretation; textualism; originalism; legal interpretation; statutory interpretation

Suggested Citation

Schauer, Frederick, Unoriginal Textualism (August 26, 2021). George Washington Law Review, Vol. 90, 2022, Virginia Public Law and Legal Theory Research Paper No. 2021-38, Available at SSRN: https://ssrn.com/abstract=3911956

Frederick Schauer (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6777 (Phone)

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