Textualism

• Author: Leonard W. Levy
• Pages: 2681-2684

Page 2681

Textualism denotes the opinion that whenever possible, judges resolving questions of constitutional law should rely primarily on the language of the Constitution itself. The text should guide decision and the text itself, rather than other considerations such as ORIGINAL INTENT, ratifier intent, history, principles inferred from the text, altered circumstances, judicial readings of societal values, or even judicial precedents. Justice OWEN J. ROBERTS, for the Court in UNITED STATES V. BUTLER (1936), manifested an allegiance to textualism when he declared that the constitutionality of a contested statute should be squared against the appropriate language of the text to see if they match.

This view of the best way to determine constitutionality was the most prevalent one at the time of the making of the Constitution. THOMAS JEFFERSON and ALEXANDER HAMILTON differed on the question as to whether an act of Congress incorporating a bank was constitutional; but, as Hamilton said, Jefferson would agree "that whatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual established rules of construction." Hamilton accurately stated the truth of the matter to the founding generation.

Despite near unanimity on the propriety of interpreting the Constitution according to established rules of construction, the Framers arrived at contradictory results when applying those rules to numerous important constitutional issues. Their belief in textualism did not prevent them from dividing on the removal power, the power to charter a corporation, the power to declare neutrality, the scope of executive powers, the power to enact excise and use taxes without apportioning them on population, the power of a treaty to obligate the House to appropriate money, the power of JUDICIAL REVIEW, the power to deport aliens, the power to pass an act against SEDITIOUS LIBEL, the power to abolish judicial offices of life tenure, and the jurisdiction of the Supreme Court to decide suits against states without their consent or to issue writs of MANDAMUS against executive officers.

Rules of constitutional construction by which to construe the text are comparable to those of statutory construction, which a current federal judge, Frank Easterbrook, called "a total jumble." For every rule, as Karl Llewellyn demonstrated in his Common Law Tradition, "there is an equal and opposite rule." A master commentator, Justice JOSEPH STORY, discoursed on the rules of construction for some sixty pages in his Commentaries on the Constitution, yet he failed completely to convince his Jacksonian colleagues on the bench. Rules of construction in effect free, rather than fetter, judicial discretion. The fact remains, however, that textualism should be the bedrock of judicial review; as Story said, "Nothing but the text itself was adopted by the whole people." Whenever the fair or plain meaning of the Constitution can be ascertained, it should guide judgment.

The problem is that the Constitution is a brief elliptical document framed by common lawyers trained to believe that a few comprehensive and expansive principles supplementing a structural description will be infinitely adaptable and will provide guides that can serve to answer virtually any question that might arise on a case-to-case basis. In some crucial respects, the Constitution resembles Martin Chuzzlewit's grandnephew, who, Dickens said, "had no more than the first idea and sketchy notion of a face." The Framers had a genius for studied imprecision and calculated ambiguity. They relied on many general terms because common lawyers expressed themselves that way out of conviction and because politics required compromise, and compromise required ambiguity and vagueness.

The text, even with twenty-six amendments that have been added in two centuries, is scarcely 7,000 words long, and only about two percent of the verbiage possesses any significance in constitutional law. Almost without exception, these are the purposefully or unavoidably general terms: commerce among the states, OBLIGATION OF CONTRACTS, NECESSARY AND PROPER, BILLS OF CREDIT, REPUBLICAN FORM OF GOVERNMENT, DUE PROCESS OF LAW, PRIVILEGES AND IMMUNITIES, direct taxes, GENERAL WELFARE, liberty, UNREASONABLE SEARCHES, EQUAL PROTECTION, and the like.

For the most part, the CONSTITUTIONAL CONVENTION OF 1787 designed the Constitution with the utmost diligence and attention to detail. The Convention usually chose words with craft and craftsmanship. This is the reason that constitutional law does not involve the bulk of the Constitution.

Page 2682

It does not have to be litigated because it is clear and understandable. Consequently, the vagueness and...