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CHAPTER 1
Textualism as a Response to the "Living" Constitution
The text and intention of the Constitution must be understood to constitute the banks within which constitutional interpretation must flow.
— Attorney General Edwin Meese
As can be observed through accounts following his death, Scalia consistently articulated a particular way to interpret the Constitution. His advocacy helped constitutional interpretation become one of the most important issues facing the United States today. The debate about forms of constitutional interpretation remains important, because it perpetuates the myth that the law can be interpreted in an unbiased and nonpreferential fashion. Debates over how to interpret the Constitution have arisen because the method of legal interpretation is a rhetorical maneuver to support judicial legitimacy, for how justices interpret the law creates the reality of the law as a social practice. The thinking goes that when the process is fair, the results are fair. Scalia's advocacy of textualism was not new; the proper scope and function of judicial review has been debated for a century. Rather, Scalia's perspective represented a new chapter in an ongoing narrative about constitutional interpretation.
Split courts resulting in a plentitude of opinions, including majority, concurring, dissenting, and concurring-in-part and dissenting-in-part, result from different understandings of how to interpret the Constitution. Some justices support a "strict" interpretation of the Constitution, believing that the text should be understood in as limited a fashion as possible. Other justices support a "loose" interpretation of the Constitution, believing that the text can be interpreted differently at different times to respond to shifting social needs.
In Constitutional Fate: Theory of the Constitution, Cornell law professor Philip Bobbitt argues that justices employ six different types of commonplaces while interpreting the Constitution: historical (original intent/meaning), textual (plain meaning), structural (macro perspective), prudential (cost/benefit analysis), doctrinal (precedent), and ethical (telic ends). Justices do not use new forms of argument every time they write an opinion. Rather, they use common forms of argument to which they return in opinion after opinion. Bobbitt presents each type as an independent argument, but justices rarely cleave exclusively to one type in their opinions; they typically embrace several forms of interpretive rationale.
The debate over methods of judicial interpretation communicates to the public that certain forms of judicial interpretation are more legitimate than other forms. Judges such as Scalia who employ textualism claim that their method of interpretation exists within the narrow confines of the constitutional document, which results in their interpretation more closely corresponding to the system of governance that the Constitution created. Their approach is more democratic, in other words, because it separates the political from the legal and leaves the political to the people.
Textualism as a Method of Constitutional Interpretation
Textualism is a response to loose interpretation, such as the notion of a "living" constitution. Textualists, Bobbitt tells us, rely upon the "plain meaning" of the constitutional text. Recent scholarship on textualism has focused on three distinct applications of the term: strict textualism, rigorous textualism, and new textualism. Prominent legal theorists use the term differently, based upon the aspect of the constitutional document to which they grant agency. For strict textualists, independent articles or amendments have the agency to determine how each should be understood; for rigorous textualists, the entire document has agency as a whole; and for new textualists, it is the Constitution interacting with the community that has agency. Although Scalia does not identify himself using this language, his speeches and extrajudicial writings advance ideas found in each of these perspectives.
Strict textual construction limits judicial interpretation to the language of a particular article or amendment. Rather than hold the entire document to have significant meaning, strict textualists emphasize key articles or amendments. For strict textualists, language has limited meaning that does not change quickly. Strict textualism's limited perspective on language use gives stability and continuity to constitutional meaning, yet it cannot respond to changes in the popular understanding of language.
Whereas strict textualism examines distinct elements of the Constitution, rigorous textualism emphasizes the importance of the Constitution in its entirety. "A rigorous textualism," constitutional scholar Mark Tushnet explains, "insists that every constitutional provision — every jot and tittle — contributes meaningfully to the creation of a constitution structured by a set of principles, all of which cohere tightly with each other." Rigorous textualism relies upon the premise that the constitutional text asserts its own abiding purpose, extrinsic of meaning created by a judge's opinion. For rigorous textualists, linguistic meaning remains consistent throughout the document.
In contrast with the first two forms of textualism, both of which assert that the constitutional text has meaning within the boundaries of the text itself, new textualists believe that the Constitution has meaning only within certain linguistic contexts. New textualists place agency within the text only when the text is "clear." When the text is not clear, the new textualist defers to the legislature, granting Congress the agency to interpret the meaning of the text. Meaning derived from context allows the new textualist greater flexibility in interpretation. New textualists recognize that law toggles between constituting community and being constituted by community.
Each type of textualism relies upon the actual text of the Constitution to respond to constitutional questions. Each type favors judicial restraint, prefers that the legislature clarify nonlegal issues, and denies the role of the judge in determining legal outcomes. Each type has a different strength. Strict textualism simplifies constitutional law by holding that a few principles take primacy over other legal considerations. Rigorous textualism's breadth means that most legal questions can be answered by looking to the overall purpose of constitutional provisions. And new textualism, with its emphasis on constitutive meaning constantly recreated by community interaction with the law, has the flexibility to respond to shifts in contemporary understanding of legal principles.
Generally, critics present three challenges to textual interpretation: The language of the Constitution has no "plain meaning"; the supplemental materials used to support textual interpretation are not definitive accounts of original meaning; and limited linguistic meaning forces twenty-first-century America to be governed by the principles of eighteenth-century America. Some critics who claim the Constitution does not have a plain meaning believe that the text is neither self-determining nor self-justifying. Rather, judges, lawyers, administrative agencies, and state and local governments each determine what the text means to them. Following in the line of the early living Constitution debate, agency resides within the judge who does the interpreting; a text does not have agency on its own. Other critics challenge the idea that no other documents are necessary to understand the constitutional text. Legislative history, founders' documents, state ratification debates, and dictionaries are not authoritative statements of original meaning. Which state ratification debate, for example, would determine how to interpret a particular statute? Linguistic meaning is not constant — either across a document or through time. Other critics maintain that basing decisions on the Constitution, as it was understood at the time of its ratification, means that our dead forefathers, who cannot demographically, socially, or morally represent the modern republic, still govern America. According to University of Chicago Law Professor David Strauss, "In the textualist vision, there was a time — a moment — when someone got it right." Yet the Constitution was not perfected at the time of the ratification; judicial interpretation and recent constitutional amendments continue to expand liberty and suffrage. Thus, the twenty-first century should not be bound to the principles of the founders.
Not all scholars are critics of textualism, however. Attempting to resolve the criticism that textualism treats the Constitution as a cadaver, tying the needs of the present people to the will of the past, Yale Law School Professor Jed Rubenfeld maintains that textualism grants authority to the persons who ratified the Constitution and that the Constitution continually is enacted by the people unless (and until) they alter the constitutional text through the amendment process. Other scholars acknowledge textualism's resistance to change as its greatest strength. This view holds that textualism gives the Constitution stability and predictability, both over time and across levels of governance. Theoretically, responding to judicial questions with the belief that language is static would mean that all levels of the judicial branch — from state courts to the Supreme Court — would arrive at similar answers to the same questions.
At issue in the debate over constitutional interpretation is the role of the judge. In more strict forms of interpretation, such as those favored by Scalia, judges act as a nonpartial entity that merely observes and applies the law. In loose forms of interpretation, the judge is viewed as making the law. Although textualists claim that the Constitution should be read in a strict fashion, allowing the plain meaning of the document to be adjudicated, the Constitution cannot be interpreted apart from the individuals who read it. The historical debate about a living Constitution demonstrates how early commentary on judicial interpretation recognized the role of the judge in explaining what the law is. The idea that the text has agency on its own — whether that agency is through its living nature or through the plain meaning of the text — is a recent phenomenon. Thus, the modern conception of a "living" Constitution is a new narrative that does not have roots in the historic uses of the term.
The Living Constitution
Public discourse about a living Constitution dates back more than a century, as politicians, judges, legal scholars, and historians began to consider the organic metaphor. The conversation appears to have been introduced in 1912 by then-progressivist presidential candidate Woodrow Wilson. According to Wilson, government and society both are organic; for the system to work, we need to view the constitutional text as organic as well. Early academic understandings of the concept disagreed as to the nature of the "living" Constitution. Some scholars deferred to Wilson's metaphor, allowing for an awareness of the role of the judge in saying what the law means. Other scholars personified the Constitution, arguing that the document has the power to change itself. Over the years the meaning of the metaphor changed as the public abandoned the role of the judge in the interpretive process, understanding the metaphor rather as the ability of the constitutional text to alter itself. The perceptual shift regarding the relationship of the judge to the text, as well as to the political and the juridical, is important, because debates over constitutional interpretation, constitutional scholar William F. Harris II tells us, "most paradigmatically represents the connection between law and politics — actualized in verbal and governmental practices." Namely, how we talk about the Constitution expands or restricts the role of the judges in our democratic republic, as well as constitutes the rights and liberties of our citizens.
In his 1912 campaign speech entitled "What is Progress?" Wilson presented both the machine metaphor and the body metaphor of constitutionalism, rejecting the former in favor of the latter. Wilson's speech performs the rhetorical work of justifying the Constitution as an organic text and requires his auditors to rethink how they understand the functioning of government. Wilson explained:
Government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other, as checks, and live. On the contrary, its life is dependent upon their quick cooperation, their ready response to the commands of instinct or intelligence, their amicable community of purpose. Government is not a body of blind forces; it is a body of men, with highly differentiated functions, no doubt, in our modern day, of specialization, with common task and purpose. Their cooperation is indispensable, their warfare fatal. There can be no successful government without the intimate, instinctive coordination of the organs of life and action. This is not a theory, but fact, and displays its force as fact, whatever theories may be thrown across its track. Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop.
According to Wilson, the Constitution is neither held captive to the thinking of the founders nor governed by the rule of law; thus, it is not a static document difficult to amend. Wilson's claim created a rhetorical space for the Constitution as a changeable document, able to facilitate progressivist ideology and to protect the body politic.
Wilson's idea that the Constitution is organic found its way somewhat into Supreme Court Justice Oliver Wendell Holmes's opinion in Gompers v. United States (1914) two years later. In his opinion, Holmes claimed the machine metaphor could not apply in judicial cases; rather, each case must be considered in light of how the area of law has evolved. According to Holmes, "The provisions of the Constitution ... are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth." Holmes's words, however, cannot be understood to justify loose readings of the Constitution, as the text of the Constitution itself is not organic; rather, the products of its enumerations live and take shape beyond its textual boundaries.
Other judges quickly followed and extended Holmes's line of thought regarding constitutional interpretation. In his landmark Olmstead (1928) judicial dissent, citing Weems v. United States (1910), Justice Louis Brandeis opined that the language of the Constitution "should not ... be necessarily confined" to earlier legal applications. According to Brandeis, the Constitution contains aspirational principles that must be given new effect within each generation, according to the needs and experiences of that period. Benjamin Cardozo agreed, writing in The Nature of the Judicial Process, "The great generalities of the constitution have a content and significance that vary from age to age." Although these great legal minds concur that the constitutional text needs to be read according to contemporary standards, they do not make the intellectual leap that the Constitution is living per se. Upon the latitude of acceptance regarding constitutional interpretation, these remarks indicate that within the first part of the twentieth century several judges shifted their thinking away from the Constitution having a fixed, static meaning and toward the Constitution being interpreted more expansively than it had been in the past.
The idea that the Constitution contains broad premises that can be applied to a variety of contexts was brought before the public again in President Franklin Delano Roosevelt's 1932 inaugural address. "Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form," FDR declared. Through his remarks, the public heard the president, who had just taken an oath to uphold and to maintain the Constitution, tell them that the Constitution has the ability to respond to contemporary social needs. Although he did not characterize the Constitution as living, his statement nevertheless allows for the document to adapt to new social conditions. Roosevelt's inaugural indicated that the Constitution could respond to "extraordinary needs." Although the debate over the living Constitution would take place mostly within academic circles, the oppressive economic conditions of the Great Depression created a rhetorical situation in which the discursive construction of the Constitution as living and able to respond to their suffering would have appealed to a large percentage of Americans.
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Excerpted from "Scalia v. Scalia"
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