Legal textualism is a formalist theory that bases the interpretation of the law based on the text of the law. The main task of textualism is the rejection of intentionalism, that is, the analysis of the legislator’s intentions, which he had when he created this norm (Smith, 2019). Textualism omits the historical context and the moral and ethical guidelines laid down in the law at the time of creation (Smith, 2019). The advantage of this approach is that it provides a high level of impartiality for judges since they cannot even show some freedom in interpretation and deviate from the text of the law. The disadvantage of textualism is that a strict reading of the laws increases penalties and limits the freedom of judges and attorneys.
Skewed toward the legislature in the legislation itself can lead to dehumanization. The Constitution was written before the emancipation of women and minorities and did not explicitly grant those human rights and freedoms that people already consider natural and regular (Smith, 2019). For example, many minorities, particularly LGBTQ+ people, fear possible harassment in their right to marry. Thus, from the point of view of textualism, the decision in the case of Obergefell v. Hodges could be revisited to abolish same-sex marriage, as the Constitution does not provide for a guaranteed right to marry anyone (Kazyak & Stange, 2018). Moreover, there has already been a review of bodily autonomy in Roe v. Wade, which recognized the unconstitutionality of the right to abortion (Smith, 2019). Excessive adherence to textualism reduces the ability of judges and attorneys to protect the interests of society in the person of the defendants. Relying on the legislature, prosecutors, whose function is to demand an accusatory preparation, will have an advantage in such cases since the historical context and the spirit of the law are not taken into account.
Kazyak, E., & Stange, M. (2018). Backlash or a positive response?: Public opinion of LGB issues After Obergefell v. Hodges. Journal of Homosexuality, 65(14), 2028-2052. Web.
Smith, M. W. (2019). Textualism, originalism, populism and the most fundamental constitutional right: Why the Supreme Court should invoke constitutional protections to protect local minorities in the second amendment context. Available at SSRN 3537756.
Textualism has significantly impacted the American legal system, not only making it more punitive. The litigation in America is also more transparent and lawful relative to countries where judges use the rules too freely and can quickly turn them towards interested parties and those in power (Hannikainen et al., 2021). Textualism is the basis for the education of future judges, lawyers, and prosecutors and the first stage of work on any case.
As part of an ideal process, the judge should rely primarily on the text of the law and then consider all additional circumstances, the historical context of the norm, its meaning, and previous experience of decisions (Hannikainen et al., 2021). Unfortunately, the study by Hannikainen et al. showed that many judges tend to ignore moral judgments and lean towards textualism (2021). The article’s authors note that the problem is not in the use of textualism as such but the search for and training of participants in the trial with new methodological approaches and the search for common ground in the field of ethics and morality (Hannikainen et al., 2021). Thus, the demonization of textualism cannot lead to positive outcomes.
Textualism is one of the essential pillars of the US legislative and judicial power, creating the possibility for the existence of a democratic society. This approach, which is used on the basis of a court case, provides the participants in the process with fair competition and impartiality. The main task is to create an understanding among judges that textualism is the basis of the judicial process and not the whole process (Hannikainen et al., 2021). The judge’s work cannot end with its application and must include other approaches to the case.
Hannikainen, I., Tobia, K., Almeida, G., Struchiner, N., Kneer, M., Bystranowski, P., Dranseika, V., Stohmaier, N., Bensinger, S., Dolinia, K., Janik, B., Lauraityte, E., Laakasuo, M., Liefgreen, A., Neiders, I., Prochnicki, M., Sundvall, J. & Żuradzki, T. (2021). Coordination favors legal textualism by suppressing moral valuation.