In the context of interpreting the U.S. Constitution, what is the distinction between textualism and originalism? Are the two approaches applied much outside of the U.S. in other contexts?
It is generally held that Textualism is a kind of Originalism, which is a set of theories: these theories have something in common, which sets them apart from Minimalism or Living Constitiutionalism. The problem is that it is very difficult to establish a defining canon for Originalism, whereas Textualism is a newer development prominently associated with Scalia. There are three related theories: Original Intent, Textualism, and Original Public Understanding, subsumed under the umbrella of Originalism. The textual difficulty is finding a (somewhat) contemporary advocate of Original Intent or Public Understanding who maintains that theory in the face of Textualism, so that we can see the essential principles that distinguish the theories.
Smith ("Why originalism won’t die…" says that
Originalism is the view, embraced by Antonin Scalia, Robert Bork, Clarence Thomas and many academic legal theorists, that the meaning of the Constitution should be settled by reference to the original understanding of those who enacted its provisions
As characterized by R.G. Natelson,
The original meaning (or original public meaning) is how a reasonably intelligent, involved member of the public would have interpreted a provision. Primary evidence of original meaning is how words were used in common discourse and the definitions in contemporaneous dictionaries and legal sources. Circumstantial evidence includes the drafting and ratification conventions, public debates, and so forth.
The public meaning theory seems to have not gotten much traction, though it might be subsumed under an attempt within Original Intent theory to find evidence for that original intent. Scalia (the arch-Textualist) characterizes his "opponent" originalism (not textualists) saying
"Originalists believe that the Constitution should be interpreted to mean exactly what it meant when it was adopted by the American people." (quote from Scalia AUSTIN AM.-STATESMAN, May 6, 2005, copied from Smith)
Bork (The tempting of America) says that under the Original Intent view, "a judge is to apply the Constitution according to the principles intended by those who ratified the document" (emphasis added)
A variant sub-theory is strict constructionism, and in Common-Law Courts in a Civil-Law System, Scalia cites the case of Smith v. United States, 508 U.S. 223 to illustrate the difference between strict construction and textualism. In this case, case where defendant was said to have used a firearm during and in relation to a drug trafficking crime when he offered it in exchange for cocaine. Scalia, opining in the minority, rejects the majority’s "strict" interpretation of the word "use", says
The phrase “uses a gun” fairly [emphasis added] connoted use of a gun for what guns are normally used for, that is, as a weapon. When you ask someone “Do you use a cane?” you are not inquiring whether he has hung his grandfather’s antique cane as a decoration in the hallway.
In Scalia’s theory, which is a formalist but not a mechanical theory, words are to be interpreted "fairly", rather than "strictly":
A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.
Focusing on the difference between Scalia’s theory as a representative of textualism (sometimes called "original meaning" theory), and his characterization of other broadly-construed originalist theories (strict constructionism, as identified in Common-law courts…, Scalia in particular denies the relevance or even the existence of “intent” behind legislation.
The first and most obvious reason this is true is that, with respect to 99.99 percent of the issues of construction reaching the courts, there is no legislative intent, so that any clues provided by the legislative history are bound to be false
followed by some interesting extracts from Senate floor debate that indicates how a certain bill was passed without anyone apparently reading the relevant committee report.
In short, the difference between original intent and original meaning has to do with whether the words used in a statute are dispositive, or are they a guide to discerning the intention of the legislature where that intention is to be enforced.
In the context of interpreting the U.S. Constitution, what is the distinction between textualism and originalism?
Textualism refers to the literal interpretation of language of the Constitution and of its scope, whereas the originalist resorts to non-lexicographic criteria (primarily history and the Founders' political writings) to purport that certain proposition is in line with what the "Founders" of the nation had in mind. Consequently, the hermeneutics are more complex, subject to greater controversy, and perhaps more speculative in an originalist approach.
Originalism inevitably entails a presumption --an absurd one, in my opinion-- that the Founders were omniscient about each and every controversy that could ever arise in the U.S.
Even worse is the derivative assumption that the bare and brief language of the Constitution and its Amendments captures the Founders' allegedly infinite wisdom.
Are the two approaches applied much outside of the U.S. in other contexts?
I would say originalism is uncommon in continental Europe and Latin America, although I am by no means an "expert" in constitutional law in or outside the U.S. I do not know about the UK and former British colonies either.
Three reasons why originalism is not needed elsewhere are that:
- Other Constitutions are far more extensive and detailed than the U.S. Constitution, thereby reducing the room for speculation.
- Many countries have changed their Constitution --and indeed replaced it along with their form of government-- multiple times during the past two centuries, thus adapting to modern and more concrete developments.
- Some legal systems (example: French law) purportedly give greater consideration to the ratio legis in relation to the particular matter at issue, and ratio legis from a modern legislation might differ from the mindset attributed to (warning: sarcasm ahead ...) angry guys dumping tea in the waters back in the XVIII century.
Many coincidences between current political systems and the ones devised in the French Revolution & the U.S. Independence undeniably remain and will do so for a while. But that goes beyond the scope of question of textualism vs. originalism.