Our boggling Constitution; or, taking text really, really seriously.

INTRODUCTION

Textualism is at a dead end. (1)

I do not mean this methodologically or normatively. Those are mere trifles. I mean that textualism is at a dead end professionally.

It had a good run, to be sure. ff you got in on the ground floor, you might even have managed to leverage lifetime tenure on the Supreme Court out of it. But not anymore. A good product needs differentiation and distinctness, and good (well, famous) academics need the same thing. Which means that if "we are all textualists now," (2) we are also all, academically speaking, in serious trouble.

I am not the first person to notice this, of course. Some ten years ago, an obscure scholar named Akhil Reed Amar made the same observation. Like any up-and-coming young man with a name to make for himself, however, he did something about it. One can just imagine him, glowering over a beer at Mory's, struck both by the fact that the textualism field was now so full of entries that anything new was unlikely to attract attention and by the fact that he was running out of provisions of the Bill of Rights to reinterpret. He was not going to take this lying down-although, with another beer or two, he might take it in something less than an upright position.

Happily, Amar had an insight. In Yale-speak, it went something like this:

Interpreters squeeze meaning from the Constitution through a variety of techniques--by parsing the text of a given clause, by mining the Constitution's history, by deducing entailments of the institutional structure it outlines, by weighing the practicalities of proposed readings of it, by appealing to judicial cases decided under it, and by invoking the American ideals it embraces. Each of these classic techniques extracts meaning from some significant feature of the Constitution--its organization into distinct and carefully worded clauses, its embedment in history, its attention to institutional architecture, its plain aim to make good sense in the real world, its provision for judicial review (and thus judicial doctrine), and its effort to embody the ethos of the American people. Here is another feature of the Constitution: various words and phrases recur in the document. This feature gives interpreters yet another set of clues as they search for constitutional meaning and gives rise to yet another rich technique of constitutional interpretation. (3) In plain English, Amar's point was as follows: "Heyyy ... If some text is good, then lots of text must be great!"

Thus was born intratextualism, a theory of constitutional interpretation in which "the interpreter tries to read a contested word or phrase that appears in the Constitution in light of another passage in the Constitution featuring the same (or a very similar) word or phrase." (4)

To be sure, the argument that more must be better than some, that intratextualism must be to textualism as two scoops of chocolate ice cream are to one scoop of chocolate ice cream, has its problems. It is, some might say, further evidence that folks in New Haven have not been exposed to certain realities--like, say, basic logic. Nevertheless, intratextualism promised to do what we expect of new theories of constitutional interpretation: provide fame for its inventor and a full employment program for its devotees. We could all easily have wrung a decade or more of new work out of it, instead of its actual measly yield of one Harvard Law Review Foreword (5) and a Comment in that journal's annual Supreme Court issue. (6)

Unfortunately, there were spoilers. Recognizing that textualism had a pretty nice thing going, and that intratextualism would muscle in on this action and, what is worse, require textualists to--well, to read the text--swift action was taken. Meetings were held at the Federalist Society; Grover Norquist got involved; and before long, marching orders had been dispatched. Actually, by accident two sets of orders were sent out. But a compromise was reached, and within a year Adrian Vermeule and Ernest A. Young took together to the pages of the same Harvard Law Review in which Intratextualism had appeared, in an attempt to strangle the infant in its cradle.

Hercules, Herbert, and Amar: The Trouble with Intratextualism (7) developed at some length a fundamental critique of intratextualism. The trouble with it, in short, was that it was too much trouble. It was like textualism with homework. Vermeule and Young's article was rich, persuasive, carefully argued, and blah blah blah. Really, Amar was a goner once you read the title of Vermeule and Young's article. Those whom the gods would destroy they first call "Herbert." It was impossible for anyone to take intratextualism seriously again, since every obligatory "But see" footnote would have the name "Herbert" in it. It was a cruel blow--you will doubtless be shocked to hear that one of the authors was teaching at Chicago at the time--but an effective one. Intratextualism was declared dead on arrival, consigned to a landmark on the roads not taken in constitutional theory: Intratextualism-ville, population one.

Despite the abortive status of intratextualism, however, one must give Amar his due. He was right: professionally speaking, textualism has all the sparkle and vitality (although less gold lame) of a Sunday matinee performance by Siegfried and Roy. The Constitution is a spare document of some 8000 words, including the amendments. To add insult to injury, some 180 of those words are made up of signatures, which, let's face it, doesn't help much. (8) Even if you include some of the "presupposition[s]" (9) or "fundamental postulates implicit in the constitutional design" (10)--i.e., "made-up stuff," like the bit where the Eleventh Amendment applies to actions against states brought in state courts, (11) federal administrative proceedings, (12) and afternoon television court shows like Judge Judy (13)--there s still not a hell of a lot of meat on that body, and most of it has been picked over.

There are a few possible responses to this dilemma. Some have turned to obscure provisions of the Constitution as new grist for the textualist mill--lesser passages of little importance with little likelihood of drawing significant public attention, like the Letters of Marque and Reprisal Clause, or the Second Amendment. But at the rate that law schools (or Yale, anyway) are churning out professors, this can't be an effective long-term strategy; we will run out of unnoticed clauses all too soon. (14)

Others have turned to new models of textualism and its cousin, originalism. Jack Balkin, for example (another Yalie! What is it with that place?), has argued at length for a theory of textualism and originalism under which "constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text." (15) This theory has the tempting virtue of being, on closer examination, neither originalist nor textualist. But it has failed to persuade so far. (If you doubt me on that, consider that the article setting out this theory is over 60 pages long, while the article attempting to rebut critics of the theory is over 100 pages long. (16) In this business, we call that a rough start.) (17)

Still others--well, one person (18)--have taken a different route, arguing that "[m]uch of the Constitution, ... including some of [its] most important parts, is invisible." (19) Apart from the fact that any constitutional theory that has Justice Kennedy as its intellectual godfather is starting at a disadvantage, the "invisible Constitution" theory also has one minor problem: it is difficult to engage in textualist analysis of a text that you can't see. Finally, many have rejected textualism altogether. However, rejecting textualism is also rather passe these days. It might win you an invitation to the next American Constitution Society convention, but you won't even get a free drink coupon.

A new approach is needed. Amar did his best with intratextualism, but the deadly "Herbert" label, and the unfortunate fact that people actually read the article, meant that he failed to fly under the radar long enough to entrench it. No, what is needed is a new form of textualism, one that is radical enough to make the reputation of its sole creator, (20) but whose author is still, oddly, not as famous as the claims of justice and merit demand, and who thus stands a chance of slipping by the fuddy-duddies at the Federalist Society. I am that person, and this is my crazy theory. (21)

As we have seen, Amar's intratexualism theory asks, if a little bit of textualism is going to light everyone's fire and get people appointed to the Supreme Court, how about even more? He asks whether we might all get a professional bump by taking the constitutional text really seriously. (22) The next step should be obvious: What would happen if we treated the constitutional text really, really seriously?

The implications of this approach, as I will show, are Boggling. Literally. I propose to Boggle both the Constitution and ... your mind.

Everyone is, I hope, familiar with the family word game Boggle. Players are confronted with a box forming a four-by-four grid in which sixteen dice, each with letters on its sides, are contained. The box is shaken, and players have three minutes to come up with as many words as they can that be constructed by looking among horizontally, vertically, or diagonally neighboring letters. Hilarity (and fisticuffs, depending on the intensity and alcoholicity of the participants) invariably ensues. (23) Boggle, for those who either prefer variants or wish to avoid copyright violation claims when designing iPhone apps and Facebook games, is just as one of a family of games involving word scrambles, anagrams, and similarly deliriously exciting play.

Our Boggling Constitution--or, if you prefer, intra-intratextualism, or intra-textualism 2.0 (24)--is what happens when text is taken really, really...