One of the more interesting things about the directions in which Employment Division v. Smith has been interpreted by subsequent judges is the possible implication for textualism as a theory of constitutional interpretation. The primary virtue of textualism is sometimes said to be its fixity: words mean something — and that something can be fixed and understood by later interpreters to mean exactly what it meant at the time of the words’ authorship. And yet it seems to me that the interpretation of the Smith decision — and particularly the expansion of the exceptions which Smith itself mentions (including by the Court itself in Hosanna-Tabor) — may suggest something like the opposite view. Textualism is in some ways a theory of interpretive change, in a way that intentionalism could never be.
Here’s why.