Why Textualism is Winning

Harvard’s Cass Sunstein rearticulated criticisms of
“originalism”—the theory that judges should construe legal texts using the
original public meaning of its words—in a Bloomberg op-ed piece last week. While
critical of conservative originalism, Sunstein does not reject the entire
approach outright. Sunstein, like Jack M. Balkin in his 2011 book, Living Originalism, seeks to wrest the
idea originalism from the proprietary hands of conservative legal authorities
like U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas.

Sunstein’s column, like Balkin’s book, while criticizing
conservative textualism, nonetheless signals an important shift in the grounds
of debate.

In decades past, progressives unapologetically celebrated
the theory of the “living, breathing” Constitution. While often taken to be an
invitation to ignore constitutional text entirely, that wasn’t the
progressive’s original need for the theory. Starting in the late 1930s, progressive jurisprudence got caught in a bit of a bind. On the one hand, they
wanted judges to use constitutional texts to thrust themselves actively into making
social policy, most notably by taking on the legal edifice that shaped and
supported racial segregation. On the other hand, they wanted judges to refrain from thrusting themselves into
economic policy and second guessing the rise of the modern regulatory state. The
theory of the “living, breathing” Constitution allowed progressive legal
authorities to pick and choose which constitutional provisions they would apply
rigorously, and which they would wave on with little more than a wink and a nod
to the legislature.

Like Balkin, Sunstein jettisons the basic project of the
“living, breathing” Constitution. He concedes the obvious: “You can’t ignore
the words of the Constitution while claiming to interpret it.” Sunstein is not
as full-throated in his support of textualism as Balkin is, but his concession
is just as significant. It is no longer a matter of textualism versus something
else. Textualism is now the only game in town. I don’t think that Sunstein
accurately describes Scalian textualism, and so does not hit home in his
criticisms. But all the same, Sunstein concedes that the ground of the
discussion has changed. It is no longer whether
textualism but which textualism.

But like many conservative advocates of textualism, Sunstein
misses the real source of textualism persuasive power, thinking that its
attraction lies only in restraining judicial power.

The real source of textualism’s power, and the reason it
resonates with as much of the public as it does, is that at its center is the simple
idea that we should read the Constitution just as we do other texts. Whether
it’s a newspaper, an e-mail from Aunt Jenny, or a Shakespeare play. We read to
understand what the author, or the authors, wrote.

Critics of judicial textualism like to argue that textualism
doesn’t provide the determinate answers to textual questions that it promises. That’s
true enough from one perspective, but if attending to the actual text reduces
that number to three, four, or even more reasonable constructions of the text
itself, then the outcome of the interpretive process will certainly be a lot
more determinate than the alternative, which is an uncountable number of
constructions untethered to the text.

And, no, this does not mean that legislators don’t ever
intend to write ambiguity into laws (which is another common shibboleth of
textualism’s critics). Does anyone believe that Aunt Jenny doesn’t keep aspects
of the topics she writes of in her e-mail to herself to keep her options open
or to let someone else decide a matter? If Aunt Jenny does it, and when great
authors do it, is it really a surprise, or a unique reading challenge, when
legislators do it?

At root, textualism is simply about trying to give the
Constitution, or any legal text, an honest reading. We can argue and disagree
about what Aunt Jenny meant in her e-mail. But we want to understand what she
wrote. Constitutions and statutes are written by people as well. We might not
like what they wrote, we might disagree with what they wrote, or disagree with
one another about the meaning of what they wrote. We might wish that they were
clearer in what they wrote, or perhaps even wish that they were less clear in
what they wrote. None of that affects the first move in approaching the text:
trying to understand what they wrote. That simple virtue is why textualism is
winning.