[3][4] Textualism is often erroneously conflated with originalism, and was advocated by United States Supreme Court Justices such as Hugo Black and Antonin Scalia; the latter staked out his claim in his 1997 Tanner Lecture: "[it] is the law that governs, not the intent of the lawgiver.
These judges base their resistance to that interpretive practice on two major premises: first, that a 535-member legislature has no "genuine" collective intent concerning the proper resolution of statutory ambiguity (and that, even if it did, there would be no reliable basis for equating the views of a committee or sponsor with the "intent" of Congress as a whole); second, that giving weight to legislative history offends the constitutionally mandated process of bicameralism and presentment.Strict constructionism is often misused by laypersons and critics as a synonym for textualism.
To illustrate this, we may quote Justice Scalia, who warns that "[t]extualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute.
"[9] Similarly, textualism should not be confused with the "plain meaning" approach, a simpler theory used prominently by the Burger Court in cases such as Tennessee Valley Authority v. Hill, which looked to the dictionary definitions of words, without reference to common public understanding or context.
"As an illustrative example, Justice Scalia refers to a case in which the law provided for a longer sentence when the defendant "uses a firearm" "during and in relation to" a "drug trafficking crime."
In the case, the defendant had offered to trade an unloaded gun as barter for cocaine, and the majority (wrongly, in his view) took this meeting the standard for the enhanced penalty.
That, we have said, only permits us to adopt one rather than another permissible reading of the statute, but not, by altering its terms, "to ignore the legislative will in order to avoid constitutional adjudication.Textualists acknowledge the interpretive doctrine of lapsus linguae (slip of the tongue), also called "scrivener's error."
(See, e.g., United States v. X-Citement Video, 513 U.S. 64) (1994) (Scalia, J., dissenting) ("I have been willing, in the case of civil statutes, to acknowledge a doctrine of 'scrivener's error' that permits a court to give an unusual (though not unheard of) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result") and even break it (see, e.g., Green v. Bock Laundry Machine Co., 490 U.S. 504, 527) (1989) (Scalia, J., concurring) ("We are confronted here with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional, result.