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The concept of separation of powers aims at ensuring that branches of government with different tasks and mandates perform their duties independently without interference according to their areas of specialization. The main reason for such specialization is to limit the power that each branch of government has in a bid to prevent the creation of moral hazard.
Additionally, such separation prevents one branch of government from interfering with another’s operations and performance of duties. However, it is essential to ensure that the branches of government operate within their mandate without overstepping their power. Since the three bodies constitute the highest offices in government, they should keep each other in check.
Separation of power has often resulted in controversy as the legislature and the judiciary’s powers sometimes overlap due to constitutional and statutory interpretations.
The paper discusses some of the ways in which the theory of textualism makes interpretation easier, simplifies challenges, and how the theory compares to the theories of originalism and common law use of the principle of precedence in terms of objectivity and ease of application. The paper explores the three theories according to sentiments by the U.S Supreme Court judge Antonin Scalia in his work, A Matter of Interpretation: Federal Courts and the Law.
Textualism: Antonin Scalia
Antonin Scalia is a Judge of the Supreme Court – a position that he has held for the past twenty years. Scalia’s extensive experience in the judicial system has made his opinion on statutory and constitutional interpretation noteworthy, especially when conducting analyses on other theoretical approaches to the same. In his book, A Matter of Interpretation, Scalia clearly expresses his support and preference for the textualist approach of interpretation.
According to Scalia (1998), the most suitable interpretation of the constitution and other statutes is one where “the text is the law…and it is the text that must be observed” (p. 11), as it is simple, complies with constitutionality, and prevents the inclusion of personal prejudices during the interpretation process.
In essence, textualism proposes a method of interpretation of statutes according to the meaning of the actual text and language in a statute. Scalia (1998) states that the ordinary meaning of a text governs the interpretation and that judges should not go outside the text to seek a meaning through the application of factors such as the intention of the law. In his opinion, textuality provides a sense of simplicity when interpreting legislation that most other methods lack (p.14).
Additionally, such simplicity eases the interpretation process and shortens the amount of time that a court spends contemplating on a decision, without compromising any of the statutory or constitutional provisions (Scalia, 1998, p.15). Another advantage that Scalia mentions in his text is the view that the adoption of textualism in interpretation creates uniformity in interpretation that other methods lack.
Scalia (1998) explains this point by positing that the uniform application of statutes and constitutional provisions creates a possibility for uniformity in interpretation resulting in easy application of the law if judges choose to use textualism as opposed to any other method of interpretation (p.20).
In Scalia’s view, the use of factors such as intention and legislative history results in subjective decisions and opens doors for personal prejudices, which becomes problematic because judges might use such criteria to create their version of what they think the law, should be instead of what it is.
He expressly states, “My view that the objective indications of the words, rather than the intent of the legislature, is what constitutes the law leads me, of course, to the conclusion that the legislative history should not be used as an authoritative indication of a statute’s meaning” (Scalia, 1998, p. 29).
Although Scalia’s arguments make a lot of sense, some scholars, especially in the law profession, argue that the theory has limitations like any other theories, and thus it does not qualify as the easiest theory to use in terms of flexibility and adaptability to changes in societal values. Some of the prominent theories that provide a comparison in application to textualism include the original intention theory and use of precedence.
Original intent (originalism)
The original intent theory of statutory and constitutional interpretation suggests that in order for judges to obtain the correct interpretation, they must consider the intention of the legislature at the time of the statute’s inception and then apply such findings to cases at present.
Proponents of this theory justify its formulation by stating that it aims at ensuring that judges understand the meaning of the text in statutes clearly before application (O’Brien, 2012, p.102). In this case, the intention of lawmakers suffices over the literal meaning of the text. Proponents of originalism argue that the vague nature of the constitution and statutes makes a literal reading of text problematic.
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However, consideration of the intent of the legislature using the test of a reasonable man eliminates such limitation and results in ease of application. The proponents also state that the meaning of the law does not change even as society changes, thus safeguarding the core societal values it aims to protect. These arguments make sense in the light of globalization and the adoption of selective cultures, both of which create the potential risk of loss of identity in any society (Scalia, 1998, p.186).
Although the application of the theory sounds simple, certain difficulties exist in terms of uniformity of interpretation. Different people interpret common situations differently. For instance, some people choose to focus on the positive side of any situation, while others bear an inclination to notice the negative. In the same way, some scholars, including Scalia, point out that it is nearly impossible for all judges to interpret the text in statutes the same way.
The element of ambiguity is often the source of such lack of synchronicity. Secondly, reference to the original intent prevents the application of the statute in later cases whose facts comply with the application of the literal text meaning, but fails in terms of application according to the intent.
One of the issues that have so far proven this point is the issue of homosexuality. Most legislative bodies in federal governments during the 1980s outlawed homosexuality in express terms. In current years, activism in support of gay rights has ignited the need to revisit the statutes. However, consideration of the original intent has so far been one of the reasons why incorporation of such rights into law has been nearly impossible.
According to Scalia (1998, p.190), the basis for original intent is erroneous, thus creating possible grounds for nullification of the theory with regard to the interpretation process. Scalia (1998, p.182) cautions that with more than five hundred members of the legislature, it is nearly impossible to ascertain the collective intention of all the members when establishing original intent in any statute.
Additionally, the application of original intent requires one to revisit legislator history, which creates a lack of appropriate respect for the wording of the text (Scalia, 1998, p.179). Comparison of the theory to textualism indicates the latter to be simpler in application. However, it is important to note that both theories possess elements that overlap with such ease of application, thus making them appear relative albeit only with regard to ease of application.
Common law use of Precedence
The principle of precedence essentially suggests that in order to establish the applicability of statutes and the constitution to cases, a judge or lawyer has to consider previous judicial decisions on matters exhibiting similarities in terms of facts. Ordinarily, the principle aims at creating a sense of uniformity and consistency in decision making that eases the task of judges and lawyers when evaluating cases.
However, the uniqueness of some facts in specific cases makes adherence with such uniformity problematic. Usually, in instances where the points in a particular case reveal elements absent in past cases providing precedence, a judge has to make a fresh decision for purposes of utilization as precedence in future cases (O’Brien, 2012, p. 309).
The concept adheres by several rules, one of which is that the facts in the current case have to exhibit striking similarities with the applicable case law. Secondly, the hierarchy of courts dictates the effect that the precedent has on the current case. Usually, the high court, court of appeal, and the Supreme Court create decisions that are binding in nature while those of lower courts often have a suggestive appeal as opposed to an authoritative one (Scalia, 1998, p.190).
Thirdly, case law, which is the primary source of law concerning this principle, serves to fill gaps regarding certain matters for which statutes provide no satisfactory means of resolution. Ideally, the application of precedent cases in decision-making eliminates the need to deal with issues of ambiguity and vagueness (O’Brien, 2012, p. 421). The use of past cases with similar facts makes it easy for lawmakers to establish a decision. An analysis of these facts reveals this method of interpretation to be comfortable and more practical than originalism.
However, this theory is not without its challenges. One of the most controversial issues surrounding the theory’s application is its tendency to overlap with the legislative mandate regarding the formulation and enactment of laws in statutes. Scalia (1998, p.178) argues that the principle creates a threshold through which the judiciary crosses into the territory of the legislature, thus breaching the concept of separation of powers.
He notes that the legislature reserves all rights to formulate laws while the judiciary’s task is to enact these laws. However, by creating case law and using it as a basis for decision-making, the judiciary turns itself into a law-making body, which is contrary to its purpose (Scalia, 1998, p.189). In his book, Scalia (1998, p.192) argues that this mistake comes from educational institutions that teach students how to derive law from past cases.
By doing so, law professors create a breed of lawyers and judges that considers case laws more as compared to what it does to actual law in statutes and the constitution. He explains that even though the principle still gives regard to statutory law, the importance that it accords such law is not as high as it should be.
In his opinion, the application of case law as the basis for decisions creates a scenario where historical legislation overshadows current legislation and diminishes the importance of the legislature (Scalia, 1998, p.194). Therefore, the principle in Scalia’s view is flawed and it fades in comparison to his textualism principle.
Theoretically, using the principle of textualism as a method of constitutional and statutory interpretation is easier than applying theories such as precedence and originalism as the application of the law does not require any interpretation other than the literal meaning of the text. However, the practical aspect of such application reveals that the principle is riddled with limitations like any other theory.
O’Brien, D. (2012). Judges on Judging: Views from the Bench (4th ed.). Washington, DC: Congressional Quarterly Press.
Scalia, A. (1998). A Matter of Interpretation: Federal Courts and the Law. Princeton, NJ: Princeton University Press.