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
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.
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.
But how can 2, 3, 4, 5, be distinguished?
Re 5.1: Consider only constitutional interpretation: then how do 3 and 4 differ?
Re 5.2 : how does this explain the distinctions between 3 and 4?