Wikipedia propounds 1. 'original intent'. The other 3 terms are from: Richard A. Posner, How Judges Think (2008), p. 191 Bottom - 192 Top.

p. 191

  My last example of traditional legal reasoning is the interpretation of statutes and constitutions. It is the scene of interminable debate. Traditionally it was a debate between advocates of "strict construction," or its approximate synonym [2.] "plain meaning," and of "loose construction" ("construction" meaning "interpretation"). Today it is more commonly a debate between advocates of "textualism" and "originalism," on the one hand, and of "dynamic" or "purposive" interpretation, and the concept of "the living Constitution," on the other hand.
  [3.] "Strict construction" can mean interpreting statutes (and other documents to which legal significance attaches) narrowly, as in the old "canon of construction" that statutes in derogation of the common law are to be interpreted narrowly so as to minimize their inroads into that law. Or it can mean interpreting statutes and other documents literally, that is, according to the "plain meaning" of their words, without recourse to considerations of legislative history, real-world context or consequences, or other indicia of legislative purpose. Literal interpretations

p. 192

can be astonishingly broad. "Literal when narrow" may be the practical meaning of strict construction. The loose constructionist is a nonliteralist, but he does not necessarily favor broad interpretations of statutes or constitutional provisions, creating new judicially enforceable rights. He could in other words be a practitioner of judicial self-restraint rather than of judicial activism.
  [4.] "Textualism" is literalism. [5.] "Originalism" means giving the words of a constitutional provision [5.1] (the term is rarely used in relation to any other type of enactment) [End of 5.1.] their original meaning—more precisely, restoring the understanding of the ratifiers. So the two terms are quite close, [5.2] except when the meaning of crucial terms has changed over time [End of 5.2.] —I give the example of habeas corpus in chapter 10 [on p. 292 Bottom]—and except that if the statutory text is ambiguous a strict constructionist will want to construe it against the litigant who is relying on it while the originalist will be guided by the meaning that the text's authors (or ratifiers, in the case of constitutional provisions) would have assigned to the text. Textualism and originalism share with strict construction an antipathy to interpreting a statute or a constitutional provision by reference to its purpose. Semantic rather than pragmatic or policy-oriented methods of interpretation,31 all three are quintessentially legalistic techniques.

Scalia explained the difference between 3 and 4, also here: 3 appears more literal, unthinking, and more capable of absurd outcomes, than 4.

p. 292 exemplifies, but doesn't expound, the distinction between 4 and 5.

    Suppose now that Congress curtailed or even eliminated federal ha- beas corpus as a postconviction remedy, though there was no rebellion or invasion. Would that be a violation of the suspension clause? An originalist would say no; a "living Constitution" buff would say yes; a textualist (here illustrating a fissure in the textualist-originalist school) would also have to say yes (habeas corpus is habeas corpus). But one does not need a theory to recognize that a judge's ruling that "curtailing an optional statutory enlargement violates the suspension clause would create an irrational ratchet. Habeas corpus could always be enlarged, but once enlarged could not be returned to its previous, less generous scope without a constitutional amendment.

  1. But how can 2, 3, 4, 5, be distinguished?

  2. Re 5.1: Consider only constitutional interpretation: then how do 3 and 4 differ?

  3. Re 5.2 : how does this explain the distinctions between 3 and 4?

closed as too broad by user6726, Pat W., Nij, A.fm., Jason Aller Jan 25 '18 at 14:57

Please edit the question to limit it to a specific problem with enough detail to identify an adequate answer. Avoid asking multiple distinct questions at once. See the How to Ask page for help clarifying this question. If this question can be reworded to fit the rules in the help center, please edit the question.

  • I suggest that you focus on two theories and no more, rather than the whole panoply. Books have been written on the topic. Decide which distinction you're interested in, and ask about that. – user6726 Jan 20 '18 at 5:16
  • Also: I suggest asking one focused question, rather than a series of essentially identical questions with a few nouns changed. – user6726 Jan 20 '18 at 5:18
  • @user6726 What of recommending those books as an answer? – Greek - Area 51 Proposal Jan 20 '18 at 5:51
  • It looks like you are asking 3 related questions, but labeled them 6, 7, and 8. Are there questions 1-5 somewhere? Are you just asking what the differences are between a few different terms? – Matt Jan 21 '18 at 1:54
  • I don't see anything labeled 4.1 or 4.2, did you mean 5.1 and 5.2? If so, I don't believe 5.1 and 5.2 even address the differences between 3 and 4. I don't really understand what you are asking. – Matt Jan 21 '18 at 2:03

Here are some general explanations of the different terms.

Strict Construction / Plain Meaning / Textualism The law means exactly what it says and nothing more. There is no wiggle room for interpreting it to mean things that it doesn't explicitly say.

Loose Construction When interpreting a law take into consideration what it seems the law is trying to accomplish which can be more than what the text of the law explicitly say.

Originalism When interpreting a law use the meanings of the words at the time the law was written instead of the current meanings. You can use either a strict or loose construction along with originalism, but usually proponents of originalism are also proponents of strict construction since slight changes in meanings of words aren't likely to change how a loose constructionist would interpret the laws anyway. Originalism usually only matters when interpreting a rather old law as the meanings of words don't change very fast.

An example:

In his dissent in King v Burwell Justice Scalia wrote:

This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to
receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B

As a textualist, Scalia interpreted "Exchange established by the State" to mean, well, an exchange that was established by a state. The literal words that were written. While the majority (using a loose construction interpretation) interpreted exchanges established by the federal government, in place of state exchanges to qualify as an "exchange established by the state". In such an interpretation, you consider things such as the effect different interpretations would have. In this case, the law sort of falls apart if you interpret it the way Scalia did. A textualist would argue that the law means what it says and congress should do a better job writing laws, a loose constructionist would argue that clearly this isn't what congress meant.

Another example:

As an originalist, Justice Scalia referenced the federalist papers in his opinion in DC v Heller in order to better understand how people interpreted the second amendment when it was originally written.


On some of the nuance that exists between those definitions:

Strict constructionism & textualism: not synonyms. Scalia did not consider himself a strict constuctionist. Rather, he viewed it as a lesser form of textualism and argued that the words should be construed reasonably, not leniently nor strictly. Basically, his issue is with the consideration, for example, of the intent the lawmakers who voted on and the executive who signed the law in question had when they approved its measures. More precisely, he is against affording the contemplated intent of such bodies any subjective intent. He explained his rationale best when he wrote,

under the guise or even self-delusion of pursuing unexpressed legislative intents, common-law judges will in fact purusue their own objectives and desires, extending their lawmaking proclivities from the common law to the statutory field.

Plain meaning is likewise distinguishable from the other two terms. The "plain meaning" rule had been controversial but just recently found a way into the national conversation again, in a case called King v. Burwell. There, the question was whether the "plain meaning" of the phrase "Exchange established by the State" meant that it could only apply to exchanges which were actually established by the State. This was, of course, about the Obamacare exchanges. The administration argued that that was not the intent of the Congress.

Additionally, originalism is meant to encompass all the theories which subscribe to the idea of the "fixation thesis." This is the notion that any meaning that is in the words of any constitutional provision is forever fixed at the time it was put into the Constitution. Linguistical changes in society in the future are not to change the meaning of the words as written.

Of course, these terms have in common that they all describe some subset of

  • 1
    Of what, is the big question. – user6726 Jan 22 '18 at 16:20

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