Antonin Scalia’s Textualism in Philosophy, Theology and Judicial Interpretation of the Constitution 1

Abstract

Textualism or Originalism, as defended by Justice Antonin Scalia of the U.S. Supreme Court, is a normative doctrine of method according to which the judicial interpretation of statutes and of the Constitution should aim at establishing the original meaning of the text. Textualism in the strict sense is unpopular not only among most judges but also among philosophers and theologians. In philosophy, Textualism was denounced as hopelessly naive by authors such as Martin Heidegger, Hans-Georg Gadamer, and their American followers. In theology, Textualism is not a viable option for believers who want both to accept as true the text of their holy book and to endorse the results of modern science and historical scholarship. I argue that Textualism is the only valid methodology of interpretation both in philosophy and in theology. For the judicial interpretation and application of statutes and constitutions, however, Textualism cannot be more than one methodological topos among many. We also have to accept other topoi, such as the topos that the system of statutes and treatises should form a consistent whole, and these other topoi cannot be considered as part and parcel of Textualism in the strict sense. It follows that the difference between a tenable sophisticated version of Textualism as a methodology of judicial interpretation and the so-called doctrine of the Living Constitution is one of degree and emphasis only. Justice Scalia's simple version of Textualism is a political ideology rather than a valid methodology of judicial interpretation.