Missouri v. Holland and historical textualism.

• Author: Ramsey, Michael D.
• Position: Symposium

1. INTRODUCTION

   A longstanding debate, recently reinvigorated, is whether the U.S. Constitution imposes subject matter limitations on federal treatymaking akin to the limits it places, through Article I, Section 8, on federal legislation. That debate was supposedly settled in the negative by the U.S. Supreme Court in Missouri v. Holland, (1) and its practical significance was drained away by the effective abandonment of subject matter limits on Congress in cases such as Wickard v. Filburn. (2) But the Court's more recent revival of at least some Article I, Section 8 limits on federal legislation (3) and the willingness in some academic quarters to reconsider Holland have put the point again in the spotlight. (4)

   This essay does not undertake to say what the Holland rule should be today; instead, it advances a methodology to determine the Constitution's original meaning on the matter. Its approach, for want of a better phrase, I will call "historical textualism." In brief, historical textualism finds constitutional meaning in the specific words of the Constitution's text as they were situated and understood in the context in which they were written. Applying that approach, I find full support for Holland's conclusion in the Constitution's original meaning. That conclusion differs from other studies which have relied on "originalist" analysis to find subject matter limits on federal treatymaking. Drawing this contrast underscores the differences between the approach I advocate and other approaches for determining historical meaning. (5)

   The essay proceeds as follows. Part II outlines historical textualism as an approach to determining the Constitution's original meaning. Part III undertakes the Holland inquiry regarding the scope of the treatymaking power using a historical textualist approach and concludes that the Constitution's original meaning imposes no generalized subject matter limitations on federal treatymaking akin to those Article I, Section 8 places on Congress' lawmaking power. Part IV examines leading studies that reach the opposite conclusion, and shows how these differences are driven principally by differences in interpretive methodology.

2. HISTORICAL TEXTUALISM: A SUMMARY

   This part offers a brief overview of the interpretive methodology I will call "historical textualism." The object of this methodology is to find the closest approximation (as limited by factors such as the lapse of time, shifting background assumptions, and imperfect historical records) of how the founding generation in America understood the document produced by the Constitutional Convention in 1787 (and, as relevant, how its Amendments were understood at the time they were adopted).

   It is important to emphasize that this approach is not in itself an argument for applying the Constitution's historical meaning to determine modern constitutional rules. The debate over which constitutional rules should hold force today is separate from the question of how we can best understand the historical document's meaning in its own time. (6) Historical textualism addresses only the latter.

   It is also important to emphasize that historical textualism, like any other historical inquiry, does not claim certainty of results. Often we will find it extremely difficult, if not impossible, to identify a constitutional clause's historical meaning. Often there will be multiple possible meanings, with no sure way to choose among them. Other times a clause may have no satisfactory explanation. The goal is merely to find the most plausible meaning in as many cases as possible, while recognizing the limitations of the inquiry and appreciating that the most plausible meaning may be only slightly preferable to the second-most-plausible. Finally, it is worth noting that the inquiry should not be understood as materially distinct from an inquiry into the historical meaning of other historical legal documents, such as the Articles of Confederation, the 1776 Virginia state constitution, or the Constitution of the Confederate States of America. (7) The fact that some people think modern constitutional rules ought in some sense to arise from the U.S. Constitution's historical meaning should not influence how that historical meaning should be determined. Only accidents of subsequent history make people look to the U.S. Constitution (rather than, say, the Articles or the Confederate Constitution) as a source of modern rules. Those accidents of history surely do not affect what the U.S. Constitution (or any other historical document) meant at the time it was written. (8)

   With these caveats, what follows is a sketch of the proposed approach. First, historical textualism is fundamentally focused on finding the most plausible meaning of the actual words and phrases in the document. It is not sufficient, in this formulation, to say merely that one's interpretive approach "starts with the text": the question is wholly conceived as asking what the text (that is, its words and phrases) meant. More important than starting with the text (although that is of course the right starting point) is ending with the text. That is, in a historical textualist approach, the conclusion should be rendered as: phrase "X" has meaning "Y." As described below, quite a few things beyond the document's actual words and phrases may contribute to that conclusion, but the conclusion should always be brought back to a particular clause or set of clauses. (9) A historical textualist will be skeptical of conclusions supposedly based on an abstract constitutional "structure" or "purpose" but not tied to particular words and phrases.

   Focus on particular words and phrases may sometimes be dismissed as "clause-bound" interpretation. (10) That characterization is both true and untrue. As explained below, historical textualism employs a wide range of evidence to determine the meaning of particular words and phrases. Further, if correctly done, historical textualism does not focus on some particular words and phrases in the document at the expense of others. How one phrase fits with others elsewhere in the document, or how words used in one place are used in another, is highly probative evidence of meaning. As Akhil Amar explains, for example, "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." (11) Thus,

   the same (or very similar) words in the same document should, at least presumptively, be construed in the same (or a very similar) way. But the flip side of the intratextual coin is that when two (or more) clauses feature different wording, this difference may also be a clue to meaning, and invite different construction of the different words. (12) Likewise, even in the absence of similar phrasing, historical textualism will consider how the proposed meaning of a particular clause fits with other parts of the document. (13) Nothing in the idea of textualism is inconsistent with the idea of looking throughout the entire text for clues to meaning of particular clauses; to the contrary, that is a core component.

   At the same time, though, historical textualism is "clause-bound" in that it embodies a search for the specific meaning of particular clauses. The document is made up of clauses (or phrases, or however one wishes to put it), and the question of the document's historical meaning is a question of its component clauses' historical meaning. The historical meaning of the whole is not more than the historical meaning of the sum of its clauses. In that sense, historical textualism should regard the phrase "clause-bound" as no pejorative. Binding oneself to the historical meaning of the document's words and phrases is precisely what anchors the inquiry, making it an investigation of what was actually written as opposed to speculation about what should have been written. (14)

   Being "clause-bound" thus does not mean eschewing "structural" arguments, (15) but it does mean treating them carefully. It is one thing to use what Professor Charles Black's foundational work called "the constitution in all its parts" (16) to illuminate the meaning of a particular part. (17) It is quite another to find meaning in "the general themes of the entire constitutional document" (as John Ely put it) (18) without relating them back to particular words and phrases. Both approaches may be called "structural", (19) but for a textualist there should be a manifest distinction. (20) "General themes" not reflected in actual text are difficult to objectively identify and apply to particular disputes; one may be skeptical (at least without powerful and specific supporting evidence) that arguments based upon them reflect what the Constitution actually meant, as opposed to what one thinks it ought to have said. (21)

   Second, historical textualism underscores that words and phrases do not have inherent meanings, but only those meanings given to them at a particular time. It is possible, of course, to read the Constitution while giving its words their modern meaning (22) (though why one would wish to do so is unclear), but this is not a useful way to understand what it meant at the time that it was written. Language evolves, and what a word meant in one era may be quite different from what it means in the next. (23) Further, particular words may commonly be used together as a unified phrase with a well-understood meaning at one time, while at some later time they might not ordinarily be used together at all, or might be used together to very different effect. A text's historical meaning arises from the context in which it was written and from the common meaning of its words in the ordinary language of that particular time. Thus historical textualism emphasizes the document's words and phrases as they were used and understood at the time they were written. If we want to identify the...