Formalism has come to dominate both legal scholarship and judicial decisionmaking that bears on the separation of powers. Today’s constitutional law scholars and the Supreme Court characterize formalism’s preferred interpretive methodologies—originalism and textualism—as rigorous and reliable, and argue that these approaches can serve progressive aims. This invited symposium contribution considers the value of these formalist approaches from the perspective of critical legal theory. First, this essay observes that originalism and textualism fall short of neutrality, objectivity and determinacy, thus reinforcing critical legal studies’ skepticism of formalism. In addition, this piece suggests that these interpretive methods are inconsistent with critical legal studies’ emphasis on social change. Notably, this piece continues the author’s work of integrating the insights of critical theory into structural constitutionalism and administrative law.

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