ABSTRACT
Formalist approaches to legal interpretation, such as textualism and originalism, are ascendant in federal statutory and constitutional law. Yet with success has come uncertainty and dissatisfaction. Formalists and their critics observe that textualism and originalism can seem as open-ended as the purposive and dynamic methods they were supposed to replace. This article tries to diagnose the source of this discontent. It does so by identifying two different faces of formalist interpretation: the formalism of authority – adherence to original sources of law – and the formalism of method—constraint through predictable, rule-bound interpretation. Defenses of formalism often assume these two paths to constraint run together, but they can come apart. The careful search for an authoritative source is not readily amenable to rules. At the same time, seeking certainty and impersonality through mechanical methods risks interpretive drift from original, authoritative norms.
Once we notice this tension, we see it everywhere in arguments about interpretive formalism: intentionalism versus public meaning; what kind of intentionalism; what kind of public meaning; the force of original expected applications; whether to treat interpretive method as law; and the centrality of rules over standards. Answers to these questions turn on how we reconcile or prioritize these two faces of formalism. It turns out that the standard contrasts between ‘form and substance’, or ‘form and function’, or ‘letter and spirit’ miss important parts of the picture. Different substantive visions about law and interpretation compete within the confines of form. Method formalism’s goals are more functional, while the spirit of authoritative formalism is less likely to confine itself to the letter. Although no synthesis should obscure either face of formalism entirely, the most plausible approach places the search for authority at the center of the practice.
Pojanowski, Jeffrey A, Faces of Formalism (February 8, 2025), Virginia Law Review, volume 112 (forthcoming 2026).
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