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.

Or at the time of the relevant amendment, of course. And wouldn't that be "original intent" interpretation, rather than whatever it is that the next sentence is discussing?

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.

Surely that's a straw man. No one would assert that words are to be read without regard to purpose. The issue for those who consider themselves professionals in this area is between those who think that where an original intention can be reliably discerned, it should be followed, and those who suppose that we accumulate understanding with experience, and that the same text and the same modes of reasoning will produce different results as experience accumulates and the society whose government is described by the Constitution changes.

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.

Is there a document of Strict Constructionism that means this? Or says it? What the Jeffersonian orthodoxy meant by strict construction—in the persons of John Taylor of Caroline, or Nathaniel Macon, or Jefferson himself, or Madison as president in the Jeffersonian mood—seems to me to have meant no such thing. To have a sense of what "strict construction" then meant, it seems to me, one has to be clear about what John Marshall was doing and had done.

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.

I don't think the reasonable person comes into it. The basic claim is that constitutions are like statutes, the product of a human process of making, which itself constrains what is made later of the product by judges acting as interpreters, or there is no such thing as rule of law. So the process of drafting, ratification and amendment, should be consulted in the same responsible fashion that we would approach the outcome of any other such process: the text where it does not require other aids to interpretation should be given the intention of the parties who made it; where other resources are required as guides to interpretation, they should supplement understanding rather than displacing the law actually made.

If we cannot accept these points as valid to a very great extent, no matter what our other commitments, then we must give up on the idea that "constitutional law" is "law" at all, such judges and jurists say.

This is a quite sensible position. It cannot be burlesqued away or treated with intellectual disrespect. As it happens, I don't in the end agree with it, but this is no way to argue against it.

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.

What? How could it be that someone who believes in a living constitution, by contrast, does not believe that we have purpose? This makes no sense to me.

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.

No more than that workers have the right to bargain collectively because Senator Robert Wagner made it so. Once again, this isn't real treatment of an idea you disagree with: it is bombast.

The textualist belief is based on a necessary deification of our founders.

No. It is based on the idea that lawmakers make law and we should interpret law in a stable fashion closely and explicably related to the law that those who made it thought they made. Treating this idea as absurd or subject to dismissal by cartoon is not intellectually responsible. I don't see how it can be rejected in toto by any acceptable form of constitutional jurisprudence; it seems to me it must form part of even a sound contrary theory (which I am myself sufficiently committed to a side in the matter to believe I hold).

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.

But any sensible theorist against whom you are arguing would be perfectly willing to concede at least the fallibility of the politicians of the federalist era. You are treating the subject as though they were as unfamiliar as you with, for example, Charles Beard's Economic Interpretation of the Constitution of the United States (1913) or Forrest McDonald's We the People: The Economic Origins of the Constitution (1958).

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.

What is that supposed to mean in this context? The reader has to get something from it here, not in an echo from some other text quite unrelated. Here it's as though it were a line from a pop song.

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.

Are you sure?

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.

No, they interpret the Constitution as legal material made by people who at some time and place made it, being so empowered, and ratified it, similarly pursuant to some specific powers.

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.

That wouldn't make sense even if it were apparent that the people whose intent one was trying to ascertain certainly didn't intend that. The most important work of the last generation, the one from which one really must start, is Jack N. Rakove's, Original Meanings: Politics and Ideas in the Making of the Constitution (1996).

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 Thurman Arnold are incorporated, poorly, throughout this essay without direct attribution. Apologies to the author for the lack of credit assigned and for the misinterpretation of any concepts.)

What the next draft needs isn't more Arnold, it's more understanding of the nature of the ideas in debate. That can lead to a discussion of the points of view that doesn't require or benefit from cartoon. I've tried to provide guides to the relevant reading. It's best, in my opinion—if one is starting out with this literature—to work backward from Rakove.