Opinion: Amy Coney Barrett champions textualism; here's why it's important
To know the meaning of a written law, one must read it. This, in a sentence, is textualism — the judicial philosophy championed by Judge Amy Coney Barrett and the late Justice Antonin Scalia, for whom she (and I) clerked. Yet some commentators dismiss textualism as wrong-headed at best and undemocratic at worst. The critics are wrong.
A non-lawyer would be surprised to learn that what we call textualism is even controversial. When dealing with a contract, will, deed, or any other written legal instrument, ordinary people instinctually grasp that it is the document’s words — and not its “spirit” or its drafters’ wishes — that bind. Why?
For one thing, only the words make the final cut. A benefactor arranges for the distribution of her assets first by sketching out plans in her mind. But until she sees to the drafting and execution of specific language in her final will and testament, her hopes and dreams are not worth the paper they are(n’t) printed on.
The same goes for contracts. A manufacturer and distributor might have a sense of roughly how many products they want to exchange and at what price, but unless they come to terms that are executed in a written deal, their mere willingness to transact does not create legally enforceable obligations on either party.
Beyond that, enforcing only the text of a legal instrument accords with our sense of justice. The best evidence of the donor’s final wishes, which courts strive to respect, are the executed terms of her will. As for contracts, fairness requires holding both sides only to what they agreed upon, as memorialized in their written deal. Awarding one party terms more favorable than he was able to negotiate for himself would be to upend the agreement in favor of one side or the other. Courts must stick to the text of the bargain, even if hard to parse, and not fudge it.
Textualism argues that statutes and constitutions should be treated exactly the same way, and for the same reasons. Preserving democracy — government of the people, by the people, and for the people — depends upon it.
To begin, only the words of a statutory enactment have force. In our system, what passes through Congress’ chambers and lands on the president’s desk is not a lobbyist’s white paper or a subcommittee’s unread report or a senator’s floor speech, but the actual text of the proposed law. Only the bill as written — not as it might have been or could be — cleared the hurdles necessary to become law under the Constitution, per we the people’s decree.
“[I]t is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated,” wrote Justice Scalia. To enforce some un-enacted meaning, he added, would be “one step worse than the trick the emperor Nero was said to engage in: posting edicts high up on the pillars, so that they could not easily be read.”
Textualism also affirms democracy by making a judge’s own political views just as irrelevant as a senator's unenacted vision of the law. Had Justice Scalia been king, flag-burners would have been thrown in prison. But his textualist approach to the First Amendment compelled him to uphold the practice as consistent with the original public meaning of “the freedom of speech.” That of course is a feature of textualism, not a bug. It keeps policymaking where it belongs: in the assemblies of our elected representatives and out of the hands of unaccountable judges.
As Justice Elena Kagan has declared, “we are all textualists now.” And as I know from having practiced before her, Judge Barrett is one of the finest textualists to have ever worn a robe. Her addition to the Supreme Court would strengthen our democratic system and help secure the rule of law for decades to come.
Ryan J. Walsh is an attorney with Eimer Stahl LLP and a former law clerk to Justice Antonin Scalia. The views expressed here are his own.