Eyer on Disentangling Textualism and Originalism @katie_eyer @RutgersLaw

Katie R. Eyer, Rutgers University Law School, has published Disentangling Textualism and Originalism. Here is the abstract.

Textualism and originalism are not the same interpretive theory. Textualism commands adherence to the text. Originalism, in contrast, commands adherence to history. It should be self-evident that these are not—put simply—the same thing. While textualism and originalism may in some circumstances be harnessed to work in tandem—or may in some circumstances lead to the same result—they are different inquiries, and command fidelity to different ultimate guiding principles. Why should this common-sense observation warrant academic commentary? Because both textualists and originalists—and even those who eschew such methodologies—are surprisingly inclined to conflate the two. Indeed, it is common (though not universal) today for textualists/originalists to treat textualism and originalism as a single inseparable package (adjudicated under the moniker of “original public meaning”), and to decline to rigorously delineate them in both theorizing and analysis. In this Essay, I argue that disentangling textualism and originalism is critical to the future vibrancy and legitimacy of textualism as an interpretive methodology. When conflated with originalism, textualism holds almost endless opportunities for partisan manipulation of precisely the kind that textualism’s critics have decried. Moreover, many types of originalist inquiry can lead judges to results inconsistent with text—and thus textualism. In short, for an adjudicator to have genuine fidelity to any interpretive theory, it is critical for the adjudicator to know to which theory, in cases of conflict, the adjudicator ultimately subscribes.

Download the essay from SSRN at the link.