America prides itself on the rule of law. But what happens when those in power cling to the letter of the law at the expense of its spirit?
Legal literalism is an approach to law that adheres to the exact words of a text, and it is becoming a tool that threatens democracy and personal freedom.
As Bill Watson, an assistant professor of law at University of Illinois College of Law, explains, literalism risks “pushing controversial interpretive choices underground rather than giving a linguistic argument for those choices,” essentially disguising political agendas as objective truth.
History shows just how literalism can sustain injustice. For instance, conservative justices’ post-Civil War interpretations of the 14th Amendment allowed Jim Crow laws to flourish.
The 14th Amendment, ratified in 1868, was designed to ensure equal protection under the law for formerly enslaved African Americans. However, the Slaughter-House Cases (1873) — the Supreme Court’s first interpretation of the 14th Amendment — ruled that the Privileges and Immunities Clause applied only to federal citizenship, not state citizenship. This ruling thereby limited the clause’s ability to protect individuals from state-level discrimination.
More recently, in Brnovich v. Democratic National Committee (2021), the Supreme Court upheld two Arizona voting rules that disproportionately burdened minority voters. Justice Samuel Alito, writing for the majority, took a narrow view of what counts as a Voting Rights Act violation, emphasizing the absence of explicit racial language in the rules.
“[R]ules entirely neutral on their face are sometimes claimed to be discriminatory simply because they have a disparate impact on one group or another,” Justice Samuel Alito said.
In other words, mere disparate impact is insufficient to establish a violation. However, claims like these ignore how the rules work in practice.
“This is going to create incentives for other jurisdictions that want to enact voting restrictions to write what appear to be facially neutral restrictions but, either alone or with other provisions, make it much harder to vote,” Robert L. Tsai, a professor of law at Boston University said.
In the area of executive power, literalism serves as justification for alarming expansions of presidential authority.
In 2019, President Trump’s declared national emergencies, circumventing congressional budgetary constraints in order to fund a border wall Congress explicitly rejected, relied on literal but spurious interpretations of emergency capacities. This literalist approach continued in 2025.
In this presidency, Trump used the National Emergencies Act and the International Emergency Economic Powers Act to justify imposing tariffs on Mexico, Canada and China, claiming threats posed by illegal immigration and drug trafficking. In this case, the “letter” of the law enabled the actions that caused economic turmoil and undermined diplomatic stability, under the guise of legality.
The judiciary is now the primary battleground for power plays. In some cases, courts are providing the last line of defense. In others, judges themselves embrace an approach that enables legal literalism.
In the former, civil rights groups are turning to the courts to be democracy’s firewall. The American Civil Liberties Union’s passport lawsuit, Orr v. Trump, is seeking an injunction to halt the State Department’s new anti-transgender policy.
However, there have also been decisions made in favor of “originalist” readings of the law. In particular, the overturning of Roe v. Wade in 2022 postulated upon a literal interpretation of the Constitution.
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment,” the Court said.
Legal literalism suggests that if a harm isn’t explicitly forbidden in the statute, it may go unaddressed. Given that laws are written at a specific point in time, they cannot anticipate every single scenario or cover every harm possible. A literalist approach creates a dangerous precedent in which laws that appear neutral and upheld due to lack of explicit statute violation can perpetuate harm. Legal literalism also goes hand in hand with what Harvard Law School Professor Emeritus Mark Tushnet calls “constitutional hardball,” a common feature of democracies in decline.
“A shorthand sketch of constitutional hardball is this: it consists of political claims and practices — legislative and executive initiatives — that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings,” Tushnet said.
Each action might be technically permissible, yet taken together, they normalize the trampling of justice. Pardoning political allies who commit crimes, for example, is entirely within a president’s legal right, but doing so subverts the spirit of impartial justice and erodes public trust.
It’s easy to get lost in the legal weeds of clauses and definitions. Oftentimes, you may see people trying to parse executive orders and policies — especially with how quickly a decision may change.
It is important to keep in mind that choices are being made and consequences are playing out. Laws are not mere words. Only focusing on words means you may lose sight of the realities any purveyors of harm are trying to actualize.
The important question, then, reveals itself: What material outcomes do these laws create, and who benefits from them?
Vigilance is increasingly important in a landscape in which “the law” is invoked to justify policies antithetical to the living spirit of justice and the people it supposedly protects. We must focus on the harm, not the excuse, and demand accountability.
Contact Val Nguyen at vnguyen4@oxy.edu
