You have now seen the tools: text and ordinary meaning, purpose, legislative history, the canons and the courts' relation to agencies. Judges combine them into approaches, often called schools. This lesson puts the two main schools side by side, each as its best advocates would put it.
Key idea
Textualism prizes fidelity to the enacted words, predictability and the legislature's role as lawmaker. Purposivism prizes making statutes work as intended. Most judges use text, structure, purpose, history and canons in some mix; the schools differ in which tools come first and which can override others.
| Textualism, as its advocates put it | Purposivism, as its advocates put it | |
|---|---|---|
| What is the law? | the words that passed both houses and were signed | the words, understood as a reasonable means to the legislature's ends |
| Best evidence of meaning | text, structure, ordinary usage, canons | text, plus purpose and (for many) legislative history |
| Main virtue | predictable; limits judges' discretion; respects the lawmaking process | statutes work as intended; avoids results no one wanted |
| Main worry about the other | purposes are vague and let judges pick results | wooden readings defeat the law's aims and make Congress's job impossible |
Why it works
Both schools claim to be faithful agents of the legislature. Textualists, led in recent decades by Justice Antonin Scalia, argue that the only thing Congress agrees on is the text, and that a statute's purposes are pursued only as far as its words go, because legislation is compromise. Purposivists answer that words have meaning only in light of what a speaker is trying to do, and that Congress writes quickly and generally, relying on courts to carry out its evident goals. Over the past few decades, textualist arguments have become more common in Supreme Court opinions, and judges who favor purpose now also start with careful attention to text. The debate continues about method, not about which outcomes are good.
Worked example: Methods cross the usual lines
In Yates v. United States (2015), the fish case, which justices dissented, reading "tangible object" in its broad ordinary sense?
- The dissent was written by Justice Kagan.
- It was joined by Justices Scalia, Kennedy and Thomas.
- Justices often grouped differently on other issues joined a textualist reading, while the plurality used canons and context to read the words narrowly.
Answer: Justices Kagan, Scalia, Kennedy and Thomas.
Worked example: Two good arguments
King v. Burwell (2015) asked whether tax credits under the Affordable Care Act were available on exchanges set up by the federal government, when the provision referred to an exchange "established by the State." State each side's main argument.
- Majority (6–3, Chief Justice Roberts): read in the context of the whole act and its design, the phrase covers federal exchanges too; otherwise the act's insurance markets would fail in many states, which Congress could not have meant.
- Dissent (Justice Scalia): the words "established by the State" are plain, and a federal exchange is not established by a State; fixing the statute is Congress's job.
Answer: Majority: whole-act context and design; dissent: the plain words.
Common mistake
Thinking one school always produces liberal or conservative results. Both schools have produced results surprising to their usual allies, and judges of every kind use both tools. The debate is about method. Check: describe the method a judge used without naming the outcome. That is what this course asks you to identify.
This is an educational course, not legal advice.