Academic journal article Harvard Journal of Law & Public Policy

Beyond Textualism: Why Originalist Theory Must Apply General Principles of Interpretation to Constitutional Law

Academic journal article Harvard Journal of Law & Public Policy

Beyond Textualism: Why Originalist Theory Must Apply General Principles of Interpretation to Constitutional Law

Article excerpt

The relationship between textualism and originalism is a central issue in constitutional interpretation. That connection runs across the full range of issues that deal with institutional structure and individual rights--the two central concerns of constitutional law. It is possible, of course, to steep oneself in the vast literature developed by judges and scholars of all political persuasions. But to do that, I think, is to engage in a deadly form of provincialism that treats the question of interpretation as though it were somehow distinctive to the field of constitutional law. That hasty conclusion is misguided because rules of interpretation are necessary to deal with any spoken statement or written document. There is, in my view, no distinctive set of tools of interpretation that are, or should be, used in constitutional law, and only constitutional law. As I have argued at length in my recent book The Classical Liberal Constitution: The Uncertain Quest for Limited Government, (1) the best way to avoid the dangers of inbred discourse is to expand horizons to look at other areas of law, both ancient and modern, that face the difficult task of fleshing out an entire institutional design from a small particular text. In this short Essay, it is only possible to develop a brief account of these connections, which are organized around three rubrics--circumvention, justification, and remedial choice--all of which offer precise analogues between the public and the private law. I begin in an odd place, which is the development of the Roman law of delict--a cross between tort and crime--that is set out in the lex Aquilia found in Book IX, Title 2 of Justinian's Institutes. (2) Thereafter, I look in succession to issues of circumvention, justification, and remedy as they appear in both private and public law. All of these techniques are, I think, strictly required by any comprehensive system of textual interpretation, whether it deals with contracts, statutes, or constitutions. The purpose of this discussion is to explain why the use of these techniques is consistent with some broader originalist conception of interpretation which treats textualism as one, but only one, constituent part of the larger interpretive enterprise both within and outside constitutional law. I then conclude with a short discussion of how the disciplined use of these techniques makes no appeal to any notion of a living constitution, but indeed stands as a mode of interpretation that exposes the defects of that approach.

I. THE ROMAN CONNECTION

The most important influence on my own views on interpretation comes from what most people would regard as an eccentric or outlandish subject: the Roman law, whose interpretive methods are best revealed in the lex Aquilia, which has two key sentences. (3) The first states, "If anyone kills unlawfully a slave of either sex belonging to another or a four-footed animal of the kind called pecudes, let him be ordered to pay the owner whatever was the highest value of the victim in that year," (4) and thereafter, "In respect of all other things, besides slaves or cattle [pecudes] killed, if anyone does damage to another by wrongfully burning, breaking or breaking off, whatever the matter in issue shall turn out to be worth in the next thirty days, so much let him be condemned to pay to the owner." (5)

The hard work here begins with the explication of the text, which contains its fair set of surprises, none of which admit to an easy solution. To be sure, the Lex contains a discussion of what kinds of animals count as pecudes, (6) which gives rise to questions of inclusion and exclusion, which usually can reach a definitive answer. But other problems are more intractable, including the issues of circumvention, justification, and remedy, to which I shall turn in due course. The first of these deals with the issues surrounding the verb "to kill." The second deals with the word "iniuria," and the third with the issues of remedy, of which the damages included in the lex Aquilia are variations. …

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