Beyond textualism: why originalist theory must apply general principles of interpretation to constitutional law.

• Author: Epstein, Richard A.
• Position: Texualism and the Role of Judges

The relationship between textualism and originalism is a central issue in constitutional interpretation. That connection runs across the full range of issues that deal with institutional structure and individual rights--the two central concerns of constitutional law. It is possible, of course, to steep oneself in the vast literature developed by judges and scholars of all political persuasions. But to do that, I think, is to engage in a deadly form of provincialism that treats the question of interpretation as though it were somehow distinctive to the field of constitutional law. That hasty conclusion is misguided because rules of interpretation are necessary to deal with any spoken statement or written document. There is, in my view, no distinctive set of tools of interpretation that are, or should be, used in constitutional law, and only constitutional law. As I have argued at length in my recent book The Classical Liberal Constitution: The Uncertain Quest for Limited Government, (1) the best way to avoid the dangers of inbred discourse is to expand horizons to look at other areas of law, both ancient and modern, that face the difficult task of fleshing out an entire institutional design from a small particular text. In this short Essay, it is only possible to develop a brief account of these connections, which are organized around three rubrics--circumvention, justification, and remedial choice--all of which offer precise analogues between the public and the private law. I begin in an odd place, which is the development of the Roman law of delict--a cross between tort and crime--that is set out in the lex Aquilia found in Book IX, Title 2 of Justinian's Institutes. (2) Thereafter, I look in succession to issues of circumvention, justification, and remedy as they appear in both private and public law. All of these techniques are, I think, strictly required by any comprehensive system of textual interpretation, whether it deals with contracts, statutes, or constitutions. The purpose of this discussion is to explain why the use of these techniques is consistent with some broader originalist conception of interpretation which treats textualism as one, but only one, constituent part of the larger interpretive enterprise both within and outside constitutional law. I then conclude with a short discussion of how the disciplined use of these techniques makes no appeal to any notion of a living constitution, but indeed stands as a mode of interpretation that exposes the defects of that approach.

1. THE ROMAN CONNECTION

   The most important influence on my own views on interpretation comes from what most people would regard as an eccentric or outlandish subject: the Roman law, whose interpretive methods are best revealed in the lex Aquilia, which has two key sentences. (3) The first states, "If anyone kills unlawfully a slave of either sex belonging to another or a four-footed animal of the kind called pecudes, let him be ordered to pay the owner whatever was the highest value of the victim in that year," (4) and thereafter, "In respect of all other things, besides slaves or cattle [pecudes] killed, if anyone does damage to another by wrongfully burning, breaking or breaking off, whatever the matter in issue shall turn out to be worth in the next thirty days, so much let him be condemned to pay to the owner." (5)

   The hard work here begins with the explication of the text, which contains its fair set of surprises, none of which admit to an easy solution. To be sure, the Lex contains a discussion of what kinds of animals count as pecudes, (6) which gives rise to questions of inclusion and exclusion, which usually can reach a definitive answer. But other problems are more intractable, including the issues of circumvention, justification, and remedy, to which I shall turn in due course. The first of these deals with the issues surrounding the verb "to kill." The second deals with the word "iniuria," and the third with the issues of remedy, of which the damages included in the lex Aquilia are variations.

   Constitutional law raises these kinds of questions, and another one that was not discussed much in the Lex, which asks about the kinds of remedies for threatened harms, or damnum infectum, that were dealt with in other Roman texts on the subject. (7) That question too arises in American constitutional law, when it is asked whether the claimant of a particular constitutional right may enjoin the government from acting, or must content himself with receiving compensation for any loss that the government receives.

   So the process runs as follows: a basic text starts with a single well-crafted sentence, and ends up with a code of tort law that represents a coherent body of doctrine that transcends the assemblage of cases that are used to illustrate the basic principle. Our Constitution contains many terse texts that present just these interpretive problems, which the Framers thought would receive explication by the same techniques that had long been established. The connection between ancient law and the Constitution is not one of mere coincidence. It is not just that key terms, like a republican form of government (8) and "senate" (9) are taken right out of Roman law. That is not mere coincidence because the drafters of the Constitution were steeped in Roman law, (10) as well as English legal history, including its Glorious Revolution and the adoption of its Bill of Rights in 1689. (11) They understood the way in which text interacted with background principles, because that was exactly the way in which the analysis was done with the classical legal texts with which they were familiar. Many of the Founders were steeped in classical tradition, and when they started to do interpretation, they wrote statutes and constitutional provisions that looked very much like the ones that had existed earlier on. And, they expected that the same tools of interpretation would be used with respect to the Constitution. James Madison, for example, had excelled in Latin and Hebrew. (12)

2. CIRCUMVENTION OF TEXTUAL COMMAND

   Now, what are these tools for successful textual interpretation? The first one is that you actually do have to read the text, closely and carefully, with an eye for nuance and detail. Thus, within the Roman system, the basic prima facie case is the killing of a slave or herd animal. The next question is what it means to kill, in Latin, by cutting or striking. There are, of course, nice points of clarification that one can kill not only with bare hands but with spears and other tools, which do not fit snugly into the Roman expression of harms "corpore corpori," or by the body to the body. (13) But these actions do involve the direct application of force, so that they are treated in Roman texts just as actions for trespass in the English and American law. But it is always a mistake to equate trespass with tort; these trespass cases do not exhaust the basic inquiry. Thus, within short order the Latin text consciously shifts gears to ask what should be done in those cases where the defendant has not killed the slave or animal, but has only "furnishe[d] a cause of death"--for example, supplied poison that the slave then drank to his own demise (14)--for which there is again no explicit textual warrant but only the strong power of analogy. Does the law want to create a royal road to evasion by allowing these activities to take place? The answer is again no. At this point, the law has two tiers of remedy, one for the direct and the other for the indirect harms. That feature is not dependent on either Latin grammar or Roman culture. The distinction between actions in trespass and actions on the case raises exactly the same set of issues in Anglo-American law. (15)

   Similar issues work themselves into the fabric of American constitutional law. What is meant by the term "speech" or "search or seizure" could be determined with an eye toward both their core meaning and the natural...