Our Boggling Constitution; or, Taking Text Really, Really Seriously
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 seriously--so seriously, in fact, that we stop taking the text seriously and start caring about the letters. It posits that our Founders did not just deed to us a Constitution in the form of words and phrases, but a whole exciting grab bag of consonants and vowels (and the letter y, which swings both ways).
If, the theory goes, all of the words in our Constitution are thick with authoritative interpretive meaning, then we would be even better off if we take that meaning, jumble it all together, hit the timer, and reach for our number two pencils. After all, if the words are authoritative sources of meaning, surely the letters are too! And given the ancient status of the Constitution, which was written in an age in which neither aeronautics nor thermal imaging searches, let alone smooth jazz or medical marijuana (although there was a reason why all the Founders grew hemp), were even conceivable, surely a Boggling Constitution would give us the interpretive leg-room we need to confront modern problems, in a way that is not only conducive to sound policymaking and the proper allocation of authority among a diverse set of post-Weberian governing institutions, but also fun for the whole family. In short, I want to argue in this Article that We the People might benefit from rethinking our basic sources of constitutional commitment and taking our reformed and reconstituted place as Elope He Wept--or, for the more daring, Pee Hep Towel.
Part I of this Article lays out the theory of Our Boggling Constitution in painful detail. Part II examines some of the arguments for and against the theoretical legitimacy and pragmatic value of my intra-intra-textualist approach to constitutional meaning in--for reasons that are no more apparent to me than to you--the form of a dialogue. Part III presents some puzzles of constitutional meaning that might be asked or answered--or even asked and answered, if no one objects--by a Boggling approach to the Constitution. The Conclusion briefly, mercifully, and tautologically, concludes.
I.... THEN YOU SHAKE IT ALL ABOUT
Recall the basic insight of Amar's intratexutalism: more is, um, better. (25) If we like a little bit of textualism, we should enjoy a whole lot of it even more. Thus, we should reject "clause-bound textualism," which does nutty things like "read[ing] the words of the Constitution in order, tracking the sequence of clauses as they appear in the document itself." (26) This approach leads to all kinds of embarrassments, like coherence and political conservatism.
Worse, it is dull. Hey, we're among friends, right? So we can admit that the Constitution is, in a word, boring. Hell, it's dry as dirt. It is so dull that, when constitutional theorists started reading Lacan and Wittgenstein in the 1980s, they did so because they thought the writing was better. If we had picked a more exciting subject to teach and write about than constitutional law, we might have a more enjoyable text to spend our time with-say, the Federal Insecticide, Fungicide and Rodenticide Act of 1947. But, as of this writing, there is no Southmayd Chair of Fungicides at Yale. We might have become literary critics instead, and spent our time reading novels. But Stanley Fish had already sucked the life out of that field before trying to muscle in on ours, and anyways the pay is worse in English departments* Face it: the Constitution is our field, and we are stuck with it. But, Amar argues, we might at least have more fun with it if we tried reading the words out of sequence.
By arguing for an intratextualist approach that "reads the words of the Constitution in a dramatically different order," (27) Amar is not arguing that we should scramble the order of particular clauses. (See "clause-bound textualism, ridiculing of.") That approach might be entertaining, but can lead to absurd results. For instance, we might read Article I, Section 2, clause 2, to say "No person shall be a Representative who shall have attained to the age of seven years...." This would lead to a bunch of squalling infants serving in the House* (Which, actually, does roughly describe the House of Representatives.) Or we might read the presidential oath of office out of sequence, which under our current constitutional system is unlikely to occur. (Okay, bad example.)
Instead, intratextualism demands that the Constitution be read out of sequence in a broad, big-thinking kind of way. For instance, we would read the provisions of the Fifteenth, Nineteenth, Twenty-Fourth and Twenty-Sixth Amendments, all of which use "the same highly" elaborate set of words, 'the right of citizens of the United States ... to vote, in pari materia." (28) Or, to take a now-aging example, in trying to make sense of the "inferior officer" language in the Appointments Clause of Article II, section 2, we would turn to other uses of the word "inferior" in the Constitution to answer the question, "To whom exactly is [Independent] Counsel [Kenneth] Starr 'inferior'?" (29) Or we might focus more specifically on particular word choices, noting, for example, that "In the Constitution, ... 'the United States' is consistently a plural noun." (30) All of this is to the good. From a Coverian perspective, intratextualism is a decidedly jurisgenerative project. (31) Once we are liberated from our "clause-bound" prisons, and focused instead on the question "What are words for?," (32) we can get a lot more life out of the old grey mare. Playing with words, combinations of words, and recurring words and phrases multiplies arithmetically (33) the possibilities for constitutional interpretation, in a way that can reach up to, if not beyond, tenure. It can generate new ideas, new interpretive modalities, new conference invitations. And because it's constitutional scholarship, it is unlikely to do anyone in the real world any harm.
Amar concedes, more than 50 pages into his Intratextualism article, that, if "[c]arried to extremes, intratextualism may lead to readings that are too clever by half--cabalistic overreadings conjuring up patterns that were not specifically intended and that are upon deep [sic] reflection not truly sound but merely cute." (34) Talk about burying the lead! He thus asks, "Intratextualism helps us see clearly a possibly attractive reading [of the Constitution]--it leads us to water. But should we drink?" (35) (It should be noted that the reference to drinking tends to confirm my theory that the whole thing was cooked up over beers at Mory's.) In any event, Amar concludes that if undertaken carefully and sensitively, if used in the right hands-say, those of a certain Southmayd Professor of Law-intratextualism offers unlimited promise as a method of constitutional interpretation.
Amar goes wrong in two places, however. The first error is his suggestion that "extremes," "cabalistic overreadings," and readings of the Constitution that are "not truly sound but merely cute" are a bad thing. In a fairly typical Yale dig at Harvard, (36) he writes: "As illustrated most vividly by [Christopher] Langdell, intratextualism can become a mechanical exercise that blunts good judgment and leads to outlandish outcomes." (37) To be sure, if Amar is right about this, intratextualism would be indistinguishable from textualism, whose very purpose is to provide mechanical exercises that blunt good judgment and ensure outlandish outcomes. Still, any attempt to cast doubt on a theory of constitutional interpretation just because it might be fanciful and useless begs the impatient response: "Okay. And that is a bad thing because?" After all, as Chief Justice John Marshall famously wrote, "[W]e must never forget it is a constitution we are expounding." (38) Which is another way of saying, it's not like we're cardiologists, auto mechanics, or something important. Our livelihood as constitutional theorists does not depend on being "sound," or "right," or "not crazy." To the contrary: if we want to keep this great gig going, we need all the cabalistic overreadings and outlandish outcomes we can get.
When you start running out of unsupportable and borderlineinsane readings of the Constitution, you might as well abandon your constitutional law treatise and call it a day. (39) Second, as Vermeule and Young point out ad nauseam, intratextualism is hard work. Really, really hard. "Clause-bound textualists" at least have the luxury of only having to read the Constitution one clause at a time. This eliminates the need to read the whole thing in context, and allows readers who are pressed for time to skip over most of the unimportant words, like "a," "the," and "well regulated militia." Intratextualists, by contrast, have to read every damn word of the document, often more than once. Which brings us back to the core problem: the Constitution is just not a fun read.
This point is important not just because, as a general rule, it is better to do fun things than not-fun things. It also raises questions of legitimacy. Americans, who need instructions to operate a toothpick and think Thomas Jefferson is that fellow who moved on up to the East Side to a deluxe apartment in the sky, are in no position to read the entire Constitution, whether word by word or clause by clause. (40) Even seasoned professionals will find it rough sledding, and may find it difficult to ascertain the most basic facts, like whether the President is supposed to be selected by the people, the Electoral College, or a slim majority of the Supreme Court. We Americans are, not to put too fine a point on it, barely qualified to elect the winner on American Idol, let alone interpret the Constitution.
The difficult and demanding nature of intratextualism as an interpretive method thus raises serious questions of democratic legitimacy. What kind of Constitution would we have--indeed, what sort of system of government would we have--if constitutional interpretation were so difficult that it became the rarefied province of just a few unrepresentative graduates of elite law schools?
Okay, forget I asked that question. Still, a number of constitutional scholars have made a similar point in different ways. They have advocated "taking the Constitution away from the courts," (41) or "popular constitutionalism," (42) as a means of restoring some of the democratic luster of the Constitution. True, they will abandon those theories once liberals again constitute a majority on the Supreme Court. But until President Obama gets a chance to do something more than just replacing old liberals with young ones, this may be a while in coming. In the meantime, it makes sense to search for a theory of constitutional meaning that can be undertaken by what Kramer would call "the people themselves" -- or, as Justice Holmes calls them, imbeciles." (43)
These two points--that any theory of constitutional interpretation should be both fun and popularly available--leads to the question that animates this Essay: Why not a form of constitutional interpretation that is fun for the whole family? Enter Boggle.
Different games have their partisans qua games, to be sure. But the question we confront here is: are there particular family games that are also totally legitimate, not-at-all-wacko devices for interpreting our Constitution? On this question, some games fall short. Constitutional theory may be a trivial pursuit, for example, but it is not Trivial Pursuit. Monopoly might have been helpful, but mostly (44) in interpreting the Constitution in the nineteenth century. Some think the popular board game Diplomacy might do, but memos written by the Office of Legal Counsel in the last Administration have declared that diplomacy has no application to constitutional interpretation or, in fact, anything else. That pretty well leaves us with Boggle.
I have already laid out the rules of Boggle, but perhaps an illustration would help here. (In any event, I have never had a chart in one of my articles, and I would like to add a sense of meaning and excitement to the otherwise drab lives of the editors.) This is a typical Boggle board:
The object, of course, is to find as many words within this jumble as possible, generally within a three-minute period. So, for instance, in the illustration above one may form the words "BAD," "ERR," "ART," "MARBURY," "RUB," and so on. I told you this was fun!
Some variants on Boggle--also known as "ways to get around copyright violations"--may also be helpful in our project of limning the Boggling Constitution. (45) The online game "Text Twist," for instance, generates six-letter combinations which can then be reordered to form different words of various lengths. (46) Similarly, the iPhone--which has bettered the human condition by offering about fifty different "fake lighter" applications, but whose onerous contract terms obliging users to sign on with AT&T for life are, ironically, in clear violation of the Thirteenth Amendment--has dozens of word scramble games, such as Twisty Text, TextTwist, and BoggWords. (Remember what I said about copyright law?) Let's just agree to call the whole megillah Boggle. If the Parker brothers have a problem with that, they know where to find me.
Our Boggling Constitution, or intra-intra-textualism, is simply a means of bringing this zany and educational leisure pursuit to bear on the activity of constitutional interpretation. Consider, for example, the Preamble to the United States Constitution. We are all familiar with its evocative language-"in order to form a more perfect Union," "secure the Blessings of Liberty," and so on. But the Preamble, read Boggle-style, also tells us that the United States is a land in which "people shoot the butts off tons of the most sweet creatures to stuff, but feel that to require a permit is evil." (47) This conclusion took Justice Scalia and his "hapless law clerk[s]" (48) endless hours of trolling through old microfilms of colonial-era Connecticut newspaper articles to reach in District of Columbia v. Heller, (49) but could have been reached with far greater speed, and no particular loss of credibility, if they'd been willing to just mess around with the words a little. The Preamble, suitably rearranged, also tells us that "former presidents' children assume they deserve the top job too, on no more than name," (50) which again could have saved the Court no end of time and trouble about ten years back. And then there is this gem, which has a certain McCulloch v. Maryland, sea-to-shining-sea spirit to it, and also may help in interpreting the Religion Clauses of the First Amendment:
Columbus to Perry, Edison to Einstein, Ruth to Ryan, Reuter to Hoffa, Disney to Spielberg: O honored pioneers! Adventurous to timid, carefree to burdened, refined optimists to crude pessimists, enfeebled to health nuts; Republicans to Democrats, Christians to Jews; Harlem to Watts, Queens to Glendale, Fifth Avenue to Main Street, Atlantic to Pacific: no lie, 'tis home to the free! (51)
And that's just the Preamble! There's lots more where that came from, believe me.
First Amendment scholars, for instance, as well as local businesses in Pawtucket, Rhode Island with surplus clowns they're trying to unload, (52) have long puzzled over the meaning of the Establishment Clause. Does it prevent the state from turning us into "insiders" and "outsiders" by endorsing particular religious messages? (53) Does it prevent us from denying "Equal Liberty" to particular religious believers or non-believers? (54) Does it mean "absolutely nothing?" (55)
The meaning of the Establishment Clause is a seemingly difficult, if not intractable, question--I hope it's intractable, since my livelihood depends on it--but, as it turns out, it is "happily ... not of an intricacy proportioned to its interest." (56) One need simply stare more closely at the word "Establishment." No, more closely than that. Closer. That's it. Now we can see that "Establishment" is simply a fancy way of saying "A Blent Theisms." In other words, under an intra-intra-textualist reading of the Establishment Clause, if you just smush all theistic religious beliefs together into a shapeless pudding of generic God-talk--a "blent theism"--you've got no Establishment Clause violation. Which, as it turns out, is pretty well what the Court has said anyway. (57) But this approach to the same reading is actually superior, because, unlike the Court's view of ceremonial deism in Marsh v. Chambers, it kind of makes sense.
Our Boggling Constitution reaches insights about other aspects of our Founding document, both structural and substantive, obscure and notorious. What does Article III mean by "controversies," to take a relatively simple example? (58) A number of things, as it turns out, including cases involving "cons," "notes," "sins," and "ire," which embraces most of the criminal law and the UCC, as well as canon law. It also, contrary to current opinion, may include cases without genuine adverse interests (or "contrive[d] sores"), cases involving product defects in tennis and fishing ("corrosive nets"), and disputes involving Murphy beds ("cot reversions"). More broadly, we can see clearly the function of Article HI as a dispute-resolution mechanism that enables parties to resolve public and private disputes without resorting to violence. What are legally resolved controversies, after all, but "converse riots?"
To take a more controversial example, the courts have struggled mightily to determine the scope, contours, and implications--oh, and also the, um, existence--of "substantive due process." One approach to this mess has been that of Justice Douglas: to find the content of substantive due process rights not in the Due Process Clause itself (partly to avoid the risk of so-called Lochner-ization, and partly because people sometimes actually read the Due Process Clause and realize it's a nonstarter), but instead in "penumbras" and "emanations" from the substantive guarantees of the Bill of Rights. (59) But this approach has generally been ridiculed. As I have learned in teaching constitutional law, law students, as somber as they usually are, cannot help tittering when they read the word "emanations." (Or the word "tittering," for that matter.)
More guidance on the scope and nature of substantive due process rights can be found, however, when we rearrange the words, or actually the letters, of Section One of the Fourteenth Amendment itself. That section includes, in an admittedly scrambled form, the words "abortion," "sodomy," "right to die," and "vibrators"--although not, interestingly, "a right of access to experimental drugs that have passed limited safety trials but have not been proven safe and effective." (60) (It does, however, happily include both "reefer" and "salvia.") It also includes the letters that make up the words "green pastel redness," incidentally, so this Essay can stand as one more effort to refute John Hart Ely. (61)
Intra-intra-textualism, in short, provides the means for discovering new sources of meaning in the letters of our founding document. It is less difficult than originalism, and also less likely to result in significant library fines for overdue eighteenth-century books. It has as much integrity as Dworkinian method, and has the advantage of not spending half of each year in England. It has as much capacity to find worthy principles of constitutionalism as so-called "justice-seeking" methods of constitutional interpretation, (62) but exceeds it in its ability to seek not only "justice," but also "ice" and "tics." And it outdoes popular constitutionalism, because it could actually be ... popular. More than popular, in fact. Downright uproarious.
II. ANONYMOUS, HERBERT, HERCULES, AMAR, BOB, CAROL, TED AND ALICE: A DIALOGUE
Another way to explore the implications of Our Boggling Constitution is through the form of a dialogue. The dialogic model, in addition to holding out the hope of a screenplay or an Off-Off-Broadway run, (63) is helpful here because it makes plain what might be obscure, clarifies what might seem complicated, and dispels doubts where they might arise. This is why Henry Hart's famous dialogue on the federal courts is so easy to understand. (64) Or maybe not. On the other hand: screenplay!
So imagine a figure like Dworkin's Hercules, only more so: a figure of infinite wisdom, grace, intellect, far-reaching vision, and smashing good looks. Call this hypothetical figure "Anonymous." His interlocutor is a less wise, more skeptical, oddly hirsute individual wearing a thick pair of glasses. Call him, naturally, "Herbert." Herbert is friendly but a little dim. Let us assume he is a federal judge.
As our dialogue begins, Anonymous and Herbert have just taken their seats in a cafe. They are sitting at a table at which the previous occupants, who failed to bus their table and left little or no tip, were Rodrigo and Richard Delgado, (65) who were discussing the plight of the working poor. Herbert is familiar with the nascent theory of intra-intra-textualism, but has a few doubts. (He also has been hiding the fact that he is having an affair with a former law clerk and has mob ties. But John Grisham will have to finish off that part of the story.) And ... action!
Herbert: You're joking, right?
Anonymous: Not at all.
Herbert: Come on.
Anonymous: Well, yes, a little. But bear with me.
Herbert: I'll listen until my latte's done. Then I'm out of here.
Anonymous: Fine. Now, is Our Boggling Constitution really so ridiculous?
Herbert: Yes. Yes, it is.
Anonymous: Well, what makes it any more ridiculous than any other theory of constitutional interpretation?
Herbert: If that's your point of comparison, you're rigging the game. Still, surely it's more ridiculous than, say, originalism. At least that has a theory of legitimacy behind it.
Anonymous: Which is?
Herbert: Historical pedigree, for one. Plus popular consent, and the fact that any activity that is too difficult for nonhistorians to do well must be just the thing for poorly trained lawyers.
Anonymous: Well, I think intra-intra-textualism has the first two categories covered.
Herbert: Excuse me?
Anonymous: Look, word games have been around a long time. People have been doing this sort of thing since the Babylonian era. (66) And they invented the ziggurat! Plus, Parker Brothers has been around since the 1880s. On the other hand, originalism was invented by Ed Meese. (67) And he wrote his first draft of the theory on a cocktail napkin in an airport bar at Dulles.
Herbert: Point taken. But surely originalism's roots extend back to the Founding era?
Anonymous: Oh, please.
Herbert: Come on. Let's be polite about this.
Anonymous: Sorry. Sip your latte; it's getting cold. (68) Anyway, while no one really knows what the Founders thought about originalism, (69) we know what they thought about Our Boggling Constitution. Kind of.
Herbert: This should be good.
Anonymous: Consider this. In a letter to the delegates of Congress on January 20, 1786, Charles Pettit writes that while some Commissioners "have Resolution enough to exercise this Discretionary Power so as to let few Obstacles impede their Progress," others, "more timid, or less inclined to dispatch the Business, boggle at many Things which the former pass pretty easily over." (70)
Herbert: Who is Charles Pettit? And what the hell was he talking about?
Anonymous: I have no idea.
Herbert: Hmm ....
Anonymous: Okay, take another example. George Washington, writing to Benjamin Harrison on May 5-7, 1779--the middle of the Revolutionary War, no less--wrote: "Little did I expect when I begun this letter that I should have spun it out to this length or that I should have run into such freedom of sentiment; but I have been led on insensibly and therefore shall not boggle at the mention of thing more which I am desirous to touch upon." (71)
Herbert: Um, he said "shall not boggle."
Anonymous: But he could have! He wanted to boggle, and would have if he hadn't been insensible at the moment. And, you know--he was just the father of our country, for Pete's sake.
Herbert: They did have pretty strong mead in those days; a lot of the Founders were probably half-"insensible" most of the time.
Anonymous: And here's another one. Josiah Bartlett-another American President--wrote to William Whipple on December 31, 1776, to discuss the question of bounties with respect to the Revolutionary War, and said that "the proposal of giving lands as a part of the bounty has boggled us, however it will be got over in a few days I believe, and sent forward." (72)
Herbert: Josiah Bartlett wasn't the President!
Anonymous: Sure he was! He was even re-elected despite having lied about having multiple sclerosis, and even though he was incredibly literate and eloquent.
Herbert: That's The West Wing. It was fictional. Plus that Bartlett didn't become President until the twentieth century.
Anonymous: The West Wing was fictional? That explains a lot. I didn't think the American people would elect someone who was so articulate. (73)
Herbert: Okay, okay. Let's just put us both out of our misery and assume that the Founders would have enjoyed Boggling the Constitution. What does that prove?
Anonymous: Not much. I mean, if I went running off to the Founders for advice every time I had a pressing concern, I would be treating my arthritis with leeches and trying to cast the demons out of my television set. But it does suggest that Our Boggling Constitution has a historical pedigree that's at least as strong as anything Leonard Leo can offer.
Herbert: Okay. But what about popular consent? At least the state ratifying conventions agreed to the particular language of the Constitution.
Anonymous: Except for when Congress forced a bunch of states to ratify the Fourteenth Amendment.
Herbert: Well, yeah. Still, the original ratifying conventions agreed to the language, right? Except for the slaves, women, and Indians.
Herbert: Exactly? What kind of answer is that?
Anonymous: They agreed to the language of the Constitution. All of it.
Anonymous: Doesn't that include the letters?
Anonymous: Well, they did. They even capitalized a bunch of them.
Herbert: Yeah, I never understood that.
Anonymous: Me neither. But do you think it's really a coincidence that if you take just the capital letters contained in Article I, Section two, Clause three of the Constitution, which discusses the division of the members of the Senate into classes for purposes of holding elections for one third of the Senate every two years, you get the words "A Cyclic Secrecy?"
Herbert: Well, in fact, I do--
Anonymous: Exactly. It can't be a coincidence.
Herbert: That's not what I was
Anonymous: Or that it contains the name "Claeys?" (74)
Herbert: Okay, that one's cool. But so what?
Anonymous: The point is that the whole Constitution is pregnant with meaning.
Anonymous: Grow up. And that meaning goes all the way down, right to the letters. Rearranged, the Constitution gives us countless clues to its meaning. It's like some kind of fractal arrangement.
Herbert: What are fractals again?
Anonymous: Well, they're ... They involve ... A fractal is ... Never mind. Just trust me on this one.
Herbert: Fine. But how does that get us to popular consent? Even if they agreed to all the letters, they couldn't have agreed to all the combinations of letters.
Anonymous: Well, that depends on what you mean by "popular." That's something most lawyers don't really know much about. Most of the time, when we talk about "popular" consent to the Constitution, we don't mean "popular" in the sense of "popularly agreed to," right? We mean something like, "agreed to by a few elite individuals who showed up for the ratifying conventions." And half of those people only showed up because they were offered a free three-day stay at a vacation resort, on the condition that they attend a ratifying convention and sit through a short sales talk on time-shares first.
Anonymous: Right. So once we're operating at that level of fiction about consent, (75) is it really any more ludicrous to say there was "popular" consent to Our Boggling Constitution?
Herbert: I guess. What's the other meaning of "popular" you had in mind?
Anonymous: Do you like interpreting the Impairment of Contracts Clause?
Herbert: I'm a federal judge. I don't interpret the Impairment of Contracts Clause.
Anonymous: Well, how about the Commerce Clause, then.
Herbert: I wouldn't really call it "interpreting," actually. More like "rubber-stamping it unless violence against women is involved."
Anonymous: Well, is there anything in the Constitution you do interpret?
Herbert: Not if I can help it. Do you know what salaries for federal judges are like these days?
Anonymous: Well, do you like reading the thing?
Herbert: Again, I'm a federal judge. If I need to know what's in it, which I don't, I ask a law clerk to look it up. You teach constitutional law. Do you or your students read the Constitution?
[Both laugh. An awkward silence follows.]
Anonymous: Um, as I was saying. Interpreting the Constitution isn't really a popular activity. It's actually kind of tedious.
Herbert: You said it, brother.
Anonymous: Boggle, on the other hand, is wicked fun. If you had to interpret the Contracts Clause, wouldn't it be more fun if you could figure out all the words hidden within it? Like "tracts," "imps," or "rim ShOt?"
Herbert: True. Although I'm not sure "rim snot" is too helpful.
Anonymous: Plus it's not only fun--it's fun for the whole family. Did you know that Boggle is suitable for ages "8 to Adult?" (76) If we really want a Constitution that is open to reading and interpretation for everyone, that can truly engage the whole community of citizens, isn't this the way to go?
Herbert: Sure, but you can't even vote if you're under 18.
Anonymous: Yeah, but the Constitution--read in an un-Boggling fashion, that is--only has age limits for members of the executive and legislative branches, not the judicial branch. An eight-year-old might not be able to serve in Congress or the Presidency, but she could at least sit on the Supreme Court or the lower federal courts, at least if she can get a note from her parents.
Herbert: Okay, I'm coming around a little. Intra-intratextualism does sound like a lot more fun than the usual kinds of constitutional interpretation. And I'd save a hell of a lot on labor costs if I could have children serving as my law clerks. I might even be able to find summer work for my son. Fourteen years old and doesn't even get out of bed until after noon! But I have to say, the whole thing still sounds a little meshuggenah. Do you folks in the academy really get paid for this sort of thing?
Anonymous: We do until tenure, anyway. After that, we don't even have to write. But if you want to advance in constitutional theory, this is exactly the kind of thing we're looking for. I mean, come on--it's brilliant!
Herbert: "Brilliant," huh? Don't suffer from self-doubt much, do you? Didn't One of you fellas knock "brilliant" constitutional theories a while back?
Anonymous: Sure--Daniel Farber. (77) He argued that "brilliant scholarship [had] recently become rampant" in constitutional law, that brilliant theories of constitutional law "by definition ... would not occur to most people," and that since these kinds of theories "can only be brilliant because [they are] actually false," we should instead focus on more "pedestrian" approaches to the field. (78)
Herbert: So what do you say to that?
Anonymous: He didn't mean it.
Anonymous: Look, complaining about "brilliance" is itself a brilliant move. I mean, the article has been cited over 120 times--or about 12, when you discount for self-citation. (79) If that's not a self-refuting move, I don't know what is.
Anonymous: Plus, haven't you ever heard of pulling the ladder up after you've climbed it yourself? (80) I'm pretty sure that's what Farber was doing. Try being "brilliant" after that! Farber would be ready to cite his own article at you before the ink was dry on your new theory.
Herbert: Sneaky devil, isn't he?
Anonymous: Trust me--brilliance still sells in constitutional theory. People can talk all they like about how boring legal scholarship has gotten, (81) but a really outlandish theory of constitutional interpretation is still going to pack 'em in.
Herbert: Or a really stupid one.
Anonymous: Tomayto, tomahto.
And ... scene!
III. A RESEARCH AGENDA FOR BOGGLING CONSTITUTIONALISM; OR, I'M BUSY--YOU DO IT
By now, it should be utterly clear that Our Boggling Constitution is more than a mere fantasy, jest, or really bad idea. (Or not. The difference between serious constitutional theory and outright parody is, after all, about as thin as the difference between Coke and Coke Classic. If there's a point to this Article--and that's a big "if"--that may be it. (82)) It is a living, breathing, occasionally dancing and singing reality. By looking at the Constitution at an atomic level, by breaking through the tyranny of words and sentences constructed in what they would like you to think is a coherent and purposive manner, and seeing instead the glorious and protean letters that are the final source of constitutional legitimacy, we open up new vistas of constitutional meaning--and, more importantly, professional opportunities for constitutional interpreters. We're sitting on a gold mine here, people!
That being said, one should concede that Our Boggling Constitution raises as many questions as it answers, or possibly slightly more. Or maybe a lot more. A skeptic might say that intra-intra-textualism raises serious doubts and concerns about little things like credibility, legitimacy, and application. That's what a skeptic would say, anyway. A constitutional scholar would call the same thing "a fertile and promising theory."
Clearly, I can't do all the work. It wouldn't be fair. Plus, my laptop battery is running down, and I'm starting to get dirty looks from the manager of this Starbucks for sitting here too long without buying anything. So let me suggest some questions that might form the foundation for future work on Our Boggling Constitution and its implications.
Congress. Article I, section one of the Constitution says that "All legislative Powers herein granted shall be vested in a Congress of the United States," which shall consist of a "Senate" and House of "Representatives." But is the legislative power also vested in "inveterate sneer pests?" And is there a difference? Furthermore, if the legislative power is vested in an "enervate peeress stint," does this affect the Constitution's bar on titles of nobility?
Federalism. The Tenth Amendment reserves the powers not delegated to the United States by the Constitution or prohibited to it by the states to the "States respectively," or to the people. The classic argument for this arrangement is that it allows the states to serve as laboratories for experiment. (83) But would our views change if we realized that these words also suggest that the states can be "pacesetters evil sty?" And do we have to keep capitalizing the word "States?" Are they really that insecure?
Separation of Powers. Some have suggested that the scope of inherent executive authority reserves to the President substantial power to act in times of war or emergency, in ways that would seem to violate the settled terms of the Constitution, and despite any efforts to restrain the President by the members of the coequal Legislative Branch of the federal government. (84) As an intra-intra-textualist matter, does it present a problem that the phrase "he shall take Care that the Laws be faithfully executed," in Article II, Section two of the Constitution, cannot be Boggled to spell out the names "Yoo," "Addington," or "Clarence?"
Guaranty Clause. Article IV, Section four guarantees to every state a "Republican" form of government. (Every state, mind you; not just South Carolina.) Does this form of government include "panic," "rapine," "bile," "earl[s]," and legislatures that would seek to "ban cruel pi?" (85)
Signatures. To date, not much interpretive meaning has been squeezed out of the names of the signatories to the Constitution. What wealth of interpretive meaning could intra-intra-textualism wring from this last remaining source of work for eager constitutional theorists? Is it a mere accident that "Cotesworth Pinckney" can be reassembled as "concrete pithy wonks," or "choices went krypton?"
Individual Rights. The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." Does that include such terrible penalties as "undue slurs," "unclad luaus" (wouldn't that be awful!), "lunar dances," and "dull saunas?" Or are these harsh measures only forbidden if they are not part of an execution--in which case, according to the current Court, anything goes?
As should be clear by now, I could go on. This Essay notwithstanding, however, less is often more. (86) (Although, strictly speaking, less is also less. Go figure.)
It should be enough to observe that Our Boggling Constitution is as rich with meaning as it is rich with implausibility. It offers questions that could easily fuel AALS conferences for the next decade, only with people other than close relatives actually showing up for the panels. If music, as a wise writer once observed, (87) be the food of love, intra-intra-textualism could well promise to be the tasty breakfast bar of legal scholarship. Jefferson once wrote that "the earth belongs in usufruct to the living." (88) As a constitutional law professor, I got a C in property, so I'm not quite sure what he was getting at. But I think he meant that the Constitution itself, ultimately, is that nutritious treat, waiting only to be scrambled and rearranged so it can reveal all its secrets.
We have tried the best that constitutional theory has to offer us--textualism, originalism, intra-textualism, living constitutionalism, the I Ching, (89) and so on. At best, they have given us Frank Michelman and John McGinnis. At worst, they have given us ... Frank Michelman and John McGinnis. We have, in short, tried the best. Isn't it time we tried the rest? Surely it is time for all constitutional scholars to say what our students have been telling us for years: Go ahead, Boggle me.
(1.) This helps distinguish it from its cousin, originalism, which is merely at a dead hand. See, e.g.,