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Law in Contemporary Society
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Why Constitutional Textualism is a False Creed
What is Constitutional Textualism?
Constitutional Textualism is a method of legal thought whereby legal truth is sought by identifying the original meaning of the authors of the Constitution in 1789. Textualism excludes from consideration the purpose of the text as well as any modern morals or societal beliefs that might effect the interpretation of the words on the page. I include in this broader creed of textualism the sub-interpretative methods known as Strict Constructionism and Originalism. Strict Constructionism calls for all extrinsic details, such as purpose, intent, and modern relevance, to be ignored and for the meaning of the text as written to be the exclusive interpretative device available. Basically, the “it is so because they said it is so” approach. Originalism, favored by the late Justice Scalia, seeks to identify how a reasonable person would have interpreted the text at the time it was written. Justice Scalia, were he alive to do so would fight tooth and nail to distinguish these three methodologies but he would only be pulling the wool over his own eyes. If you pick six apples and I pick half a dozen our baskets will look the same at the end of the day—the difference is only semantic. Why Textualism is Appealing? Textualism is appealing because, like a belief in God, it gives affirmation that we are not just ants in an ant hill. We have purpose. Things are organized as they are for a reason. In the American legal system, the pantheon of creators is no longer Zeus, Athena, Mars, and Jupiter but instead Washington, Jefferson, Adams, and Hamilton. No longer does the Sun rise because Apollo rides his chariot over the sky each morning, instead men have a right to free speech because Madison made it so. The textualist belief is based on a necessary deification of our founders. To admit that the founding fathers were just as a fallible as today’s rational thinkers, legal scholars, and Columbia Law School graduates, who surround us every day and are mostly smart, but not smart enough to formulate a new world order, would be an admission that the legal and moral system that guide this country might not be as ordered and divine as we like to imagine. Deifying the founders deifies the document and eliminates any cognitive dissonance we might see between the creed and the reality by ensuring us that the reality of injustice cannot exist in a world created by beings better than ourselves. Why Textualism is an Inherently Empty Search The Constitution was an attempt to create a system of law that properly reconciled freedom and the state. The search for this balance began before Jefferson’s Declaration, before the Magna Carta, before Rome, before humans migrated out of Africa, even before chimps came down from the trees and humanity was born. This is the search that is and always has been. Textualists interpret the founding of the United States as a moment in history separate from all the rest—a pebble dropped into a lake with future iterations rippling forth, but only as simulacrum of the original thought. Textualists try desperately to swim against the current and stay as close to that brief moment in time where the pebble had yet to sink below the surface and the true meaning of freedom, liberty, and the pursuit of happiness (not to mention the right to bear arms, cruel and unusual punishment, and due process of the law) was shown to a select few. The textualists are mistaken in seeing the Constitutional impetus as a starting point. The founding was merely another transitory ripple. One with a particularly high crest (and low trough sixty or so years later), yes, but a ripple just the same as ours nonetheless. Textualism is an inherently empty endeavor because The Constitution is an imperfect document written by imperfect men. The document itself calls out to posterity that it is imperfect. It allows for Amendment and has been amended many, many times. Perhaps most clearly its stated goal is “to create a more perfect Union,” not the perfect Union. The founders, as great thinkers have done throughout human history, were trying their best to form a balance between freedom and the state. To search their words and actions for meaning is only a simulation and not a genuine continuation of their creative attempt. Why Textualism leads to Social Inaction Textualism is the legal equivalent of Arnold’s New Haven Railroad complainants. In Arnold’s example the men can only view the world ex poste, the government mandated price reduction is bad because the world was rational before and thus the ticket price then cost was right. An ex ante view of the improvement in their lives from the price change means nothing because to accept this improvement would be an acknowledgment that the world they had been living in was in fact not rational. Likewise, the textualist cannot accept that the past may not fit the present. In a world ordered by demi-gods there can be no mistakes and thus there can be nothing new. Smart textualists, like the late Justice Scalia, are conscious of the battle and can fight even the best packaged social action by unwrapping the old principles and unveiling the new policies they hide. The average textualist, presumably Arnold’s ticket Glaucons, are the reason social action must be packaged in the old, they have no problem accepting the new as long as it fits within the old regime—it is only when the new is visible, perhaps because of skin color, gender, or a lack of skill in playing the game on the part of the social actor, that the average textualist’s unconscious dissonance is provoked and a Trump voter is born. (Concepts drawn from both Thurman Arnold and Jean Baudrillard are incorporated, poorly, throughout this essay without direct attribution. Apologies to the authors for the lack of credit assigned and for the misinterpretation of any concepts.) You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. 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