Taking text too seriously: modern textualism, original meaning, and the case of Amar's bill of rights.

• Author: Treanor, William Michael
• Position: Law Professor Akhil Amar Reed

Championed on the Supreme Court by Justice Scalia and Justice Thomas and in academia most prominently by Professor Akhil Amar, textualism has emerged within the past twenty years as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning, and in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This Article uses Professor Amar's widely acclaimed masterpiece of the textualist movement, The Bill of Rights, as a case study to test the validity of that assumption.

Amar's work has profoundly influenced subsequent scholarship and case law with its argument that the creation of the Bill of Rights primarily reflected republican rights of "the people" rather than individual rights. This Article shows that Amar's republican reading is incorrect and that his textualist interpretive approach repeatedly leads him astray. Amar incorrectly assumes that words have the same meaning throughout the document, assigns a significance to the placement of clauses that is belied by the drafting history, and incorrectly posits that the Bill of Rights reflects a unitary ideological vision. The textualist search for original public meaning cannot be squared with an interpretive approach that assumes that all word choices were made with a high degree of care, that the significance of location can be assessed simply by examining the four corners of the document, and that the Constitution must be understood holistically. Analysis of Professor Amar's Bill of Rights indicates that, paradoxically, close reading is a poor guide to original meaning: rather, careful study of the drafting history is necessary to recapture any such understanding.

TABLE OF CONTENTS INTRODUCTION I. TEXTUALISM, HOLISTIC TEXTUALISM, AND THE SEARCH FOR ORIGINAL MEANING A. Amar's Textualism B. Amar's Bill of Rights and Original Meaning II. THE NINTH AMENDMENT A. Amar's Thesis B. Critique: Legislative History in the States C. Critique: Legislative History in Congress III. THE FLAWS OF HOLISTIC TEXTUALISM A. Intratextualism B. Location C. Substantive Coherence CONCLUSION INTRODUCTION

In less than twenty years, textualism (1) has moved from the periphery of constitutional discourse to a position of the greatest prominence. Two justices of the Supreme Court, Antonin Scalia and Clarence Thomas, champion this interpretive approach, as do a cadre of influential academics, Akhil Amar most prominently among them. Constitutional textualists share a view that the Constitution should be read to reflect the original meaning of its text. They also share an assumption that they have not defended--that the original meaning of the text is determined by reading the document closely. In uncovering constitutional meaning, textualists stress precise word choice, placement of text in the document, and grammar: they compare related parts of the constitutional document and accord weight to subtle similarities and differences. They interpret the Constitution using the same close textual analysis more often associated with literary critics explicating poetry. (2)

There is an obvious appeal to this approach. When textualists offer an interpretation that draws on an apparently close reading--when they see patterns previously unseen or construct a reading that appears illuminating--it would seem that they are on to something. It is like a puzzle: if all the pieces fit, then the puzzle has been solved. And who would argue that text should not be read closely? Yet a close reading may not reflect original meaning. It may instead reflect the creativity of the interpreter or the way a text is read today.

Here is an example: Justice Thomas, Professor Amar, and others have assigned critical interpretive weight to the fact that, "[i]n the Constitution, after all, 'the United States' is consistently a plural noun." (3) This grammar would appear to suggest that the Constitution reflects the view that the United States is a collection of states rather than one nation. What this reading misses, however, is the fact that in the late eighteenth century, nouns ending in the letter s were commonly assigned plural verbs, regardless of whether or not the noun itself was plural. This rule was gradually displaced as the nineteenth century progressed. (4) It is true that "United States" was often matched with a plural verb in 1787 and consistently matched with a singular verb after the Civil War. But one cannot conclude simply from this change in grammatical practice that the dominant political theory changed--the same verb shift occurred for the word news, (5) and there was no reconceptualization of news. Grammar offers a full explanation for the grammar. (6)

As this example indicates, close readings of the text do not always capture original meaning. The close reading advanced by textualists with respect to the meaning of the "United States" in the original Constitution reflects the erroneous premise that a modern rule regarding plural verbs was also the rule in effect in the late eighteenth century. This example illustrates a larger point: textualists have simply assumed that close readings reliably capture original meaning. Critics of textualism have not questioned that assumption. This Article challenges the equation of a modern (and a historical) close reading with the actual original public meaning of the text, and instead it argues for the critical importance of evidence such as drafting and ratifying history--evidence many textualists minimize or ignore--as a guide.

In a recent article on the origins of judicial review, I looked at early cases involving constitutional challenges of statutes. I found that these opinions reflect an approach to interpretation that is, at its core, structural, not textualist. When engaged in constitutional interpretation, as a general matter, early judges did not closely parse text. Instead, their approach reflected a concern with the larger purposes underlying the text. (7)

Rather than studying judicial opinions, this Article approaches the problem of the relationship between modern textualism and original meaning from a different angle, using a case study to show the dramatic gap between textualist readings and original meaning. The case study is Professor Amar's book The Bill of Rights. (8)

Amar's book has had a broad influence on scholarly debate and case law as the leading academic work championing a republican, group-rights (rather than a liberal, individual-rights) reading of the Bill of Rights. This Article shows why his argument is dramatically misconceived. My primary concern here, however, is on textualism, and I have chosen to focus on Amar and his book for several reasons.

First, Amar has written more extensively on textualism and has worked out its methodology and implications far more fully than anyone else, including Justice Scalia. His Harvard Law Review Foreword The Document and the Doctrine (9) and his article Intratextualism (10) develop his approach and discuss the various textualist techniques he applies. In The Bill of Rights he brings those techniques to bear in an extended, textualist study of the Bill of Rights and the Fourteenth Amendment. In applying his textualist approach, Amar evidences a trait shared by many leading practitioners of textualism: while not wholly ignoring drafting history and textual usages outside the constitutional document, he relegates these evidentiary sources to secondary importance. His central focus is on the text, and it is assumed that close reading yields original meaning.

Second, while Amar is politically liberal, his textualism has been enthusiastically and repeatedly embraced by leading conservatives as the preeminent embodiment of proper textualist methodology. Michael Paulsen has proclaimed Amar's America's Constitution (11) the finest book about the Constitution since the Federalist Papers. (12) The Bill of Rights and the articles from which it was derived have been repeatedly cited by Justice Thomas and Justice Scalia, (13) and leading textualist Gary Lawson has called The Bill of Rights "one of the best law books of the twentieth century." (14) Stephen Calabresi, another leading textualist, has declared The Bill of Rights to be "one of the most valuable works of constitutional scholarship written in the modern era." (15) He adds that "Professor Amar has now indubitably proven that we can reconstruct original meanings with a very high degree of accuracy." (16) As the preeminent textualist scholar, Amar is an appropriate representative of the methodology. (17)

Third, if the panoply of close-reading techniques that Amar and other textualists champion and employ ever tracks original meaning, the Bill of Rights is precisely where one would expect that tracking to occur. While Amar, in what is essentially a companion volume to his book on the Bill of Rights, has written a textualist interpretation of the entire Constitution, (18) his view that constitutional provisions are each "part of a single coherent Constitution" (19) and that they are reflective of a "deep design" (20) does not easily fit with the reality of the framing. The series of compromises between sharply divided factions at the Constitutional Convention and a textual finish by Gouverneur Morris produced many of the constitutional features that textualists highlight. But members of the Convention often dispensed with them after little, if any, significant discussion. (21) And the adoption of subsequent amendments makes it more difficult to see the Constitution as a text to be understood as one piece. In contrast, the Bill of Rights avoids these problems. It is a significant body of text...