Our Boggling Constitution; or, Taking Text Really, Really Seriously

Article excerpt

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. …