Textualism: A dead end?
Textualism, the philosophy of interpreting even very old laws according to how a general reader of the time would have understood them, is the end stage of a long development to “tether” court decisions to principle rather than personality. In particular, the conservative majority of the Supreme Court has become notorious, for its dedication to textualism. Before this there was “originalism”, the practice of divining the thoughts and intentions of the Founders, or perhaps what the Founders might have intended were they transported to the present day. Although why the intentions of the drafters of a document should be considered decisive over those of the state conventions that ratified it was never explained.
The proponents of textualism tell us they wish to depoliticize court decisions, and that they are doing this by grounding those decisions in objective legal theory. Yet it is fair to say that the Court is more acutely politicized than ever.
Why should this be? Even if some people dislike an outcome, can’t we all agree that this is how the letter of the law reads?
If the answer is yes, then the justices seem to have solved all the hard problems. They only have to read the Constitution and decide according to the text. Job done.
The defect in this seductive rationale is that what we find written on paper is the product of fallible minds employing inherently imprecise words and syntax, and whose task was to achieve consent among people who were not entirely happy with what they were doing.
Take a familiar example. “Congress shall pass no law abridging the freedom of speech.” The exact meaning seems clear at first. But then come the questions. Does it really mean government is powerless to prohibit defamation and perjury? What exactly is supposed to happen if Congress deliberately or inadvertently does pass a law abridging freedom of speech? Are we all supposed to ignore it? Or are we supposed to act as though the law is valid and throw violators in jail, where they can languish until, after years of trials and appeals, the Supreme Court gets around to saying, “Well, no. You can’t do that.” And just where in the Constitution are we told any of this? This last question is rhetorical. The Constitution says nothing about this.
Expecting fallible humans working with imperfect tools of language to create wholly reliable legal texts is a bit like being surprised that software has bugs.
Now, the dedicated textualist would probably reply that, where there are defects in the Constitution, there is a process to amend.
So there is. But if we were to actually use that process to “debug” the Constitution, it would cease to be one.
The job of government is to govern, and we expect it to do so under the supremacy of the Constitution. Addressing the endless questions that arise in prosecuting laws and regulations is not a job for ad hoc popular conventions. If politicians can throw constitutional questions to the people whenever it’s convenient, then government is no longer operating under a Constitution.
This is why we have courts.
It’s a long established legal principle that when there is a dispute among parties to a contract, and when the text of that contract is unclear or contradictory, or did not foresee certain eventualities, a court must put a construction on the contract that leads to a fair resolution. And this follows from the simple fact that contracts, like constitutions, are the product of fallible minds working with the imperfect tools of language. Disputes will arise. And we must find a way through.
At the beginning of most such documents is a recitation of the parties and why they are entering into this agreement, what they intend to accomplish. And the US Constitution has its Preamble, a recitation of why those who wrote it (and those who ratified it) did so, what they intended to accomplish.
Yet it is a part of the Constitution that is rarely mentioned.
Our Constitution is not a perfect document. The language is often unclear, ambiguous. And we look to it to answer questions that could not possibly have been anticipated when it was written. We expect it to stand over our government as a source of legitimacy that could never be found in the politics of shifting majorities. We want it to shape the law of the land in a world as different from when it was written as that time was from the Stone Age.
Just as we expect the decision in a case of contract dispute to fairly advance the original purpose of the agreement, if that is in any way possible, so we should expect decisions at the Supreme Court to advance the purpose of the Constitution:
“…to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”
If your interpretation does not advance that purpose, how can it possibly be justified?
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