After watching an episode of Law and Order SVU (Season 10, Episode 20), I grew curious about textualism, and more broadly, the different approaches to legal interpretation.
This episode follows a “sexting” case. The teen victim, Kim, is brutally beaten after explicit images of her are spread throughout her school. Olivia Benson and her team investigate to find that Kim sent the images herself… but to the wrong person. After this revelation, the teen is questionably arrested for producing and distributing child p*rnography.
The trial judge handed down an unreasonably harsh sentence, which led me to ponder upon the detrimental impact of textualism. Below is a clip of this scene:
This episode first aired on May 5, 2009. At the time, sexting and the digital era was on the rise. I think this episode highlights the importance for judges to adopt more of an intentionalist approach when faced with cases involving emerging areas. Although the victim technically did produce and distribute child p*rn (as per the legal definition), her intent to distribute is absent. As explained, Kim’s true intention was to flirt with her partner.
“Textualism is a method of statutory interpretation that asserts that a statute should be interpreted according to its plain meaning and not according to the intent of the legislature , the statutory purpose, or the legislative history.”
What is Originalism?
Originalists argue for democratic modifications of laws through the legislature or through constitutional amendment (Alt, 2022).
Conservative Judge, Amy Cony Barrett, states: ” . . . [a textualist] hews closely to the rules embedded in the enacted text, rather than adjusting that text to make it more consistent with its apparent purposes.” However, for an originalist, “the historical meaning of the text is a hard constraint.”
“Intentionalists give primacy to the intentions of lawmakers (the legislature in the case of statutory law or framers or ratifiers in the case of constitutional law).”
“According to these theorists, interpreters should effectuate the lawmakers’ intentions even when they conflict with the meaning of the text. Accordingly, the interpreter should consult evidence of the relevant intentions other than the text.”
Thoughts.
The issue with textualist approaches to legal interpretation is the fact that it does not typically allow the law to progress. In my opinion, the law should reflect society. As historically shown, over time, how we perceive certain crimes evolves.
I am still new to understanding the different legal interpretations. However, I believe that it is important for judges to step away from legal texts to primarily view the intent behind crimes.
