Contributor Post Created with Sketch. The Limits of Textualism

 

In his recent column for Defining Ideas, Clint Bolick, a member of the Arizona State Supreme Court, addresses the central question of modern constitutional jurisprudence: What is the proper way to interpret the Constitution? Bolick, who is also my colleague at the Hoover Institution, casts his lot with the late Justice Antonin Scalia and his many followers who endorse textualism as the one proper method. The argument goes as follows: Textualism—the effort to find the accurate meaning of every word of the relevant provision—helps prevent activist judges from undermining the rule of law by creating new rights under the guise of a “living constitution” on such key issues as abortion, the death penalty, and gay rights, even when there is no basis for such rights in the Constitution or the laws as written.

Bolick’s strict textualist approach is a needed antidote to unduly adventurous constitutional interpretations. But however necessary the careful reading of text is to constitutional deliberation, it is not the full story. Sometimes, the courts must overturn erroneous precedents—and other times, they must, by “necessary implication,” read terms into the Constitution for its prohibitions to make sense. In such cases, the text alone is not a large enough tool-kit to do the job.

Let’s consider an issue that shows both the power and the limits of textualism. The Commerce Clause reads: “Congress shall have power . . . to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” In the 1824 case of Gibbons v. Ogden, Chief Justice John Marshall construed the middle phrase dealing with interstate commerce in harmony with the text’s treatment of commerce with foreign nations and the Indian tribes. His interpretation consciously covered all forms of communication and transportation across state lines, but it also excluded agriculture, manufacturing, and mining, in large measure to ensure, sadly, that slavery was immune to regulation or abolition by Congress.

Marshall’s interpretation was, however, rudely upended in the New Deal decision of Wickard v. Filburn, which in 1942 let Congress escape the earlier restraints on its power by regulating activities like agriculture, mining, and manufacturing that were entirely local because of their “indirect effects” on interstate commerce. By that one stroke, Congress could now regulate all economic affairs, national or local. The motivation for this radical expansion of government power could not have been more unwise: cartelization. Justice Robert Jackson wanted to allow the federal government to regulate the output and price of all agricultural crops, which could not be done under the original meaning of “commerce.”

Congress quickly filled the space created by Wickard, by enacting major pieces of legislation such as the Civil Rights laws of 1964, the Environmental Protection Act of 1970, and the Affordable Care Act of 2010. But these statutory programs lie on a rickety constitutional foundation. So, what should be done? Do we strike them down, in whole or part, or let them stand? Textualism requires us to up-end long precedents notwithstanding the huge reliance interests that rest on decisions such as Wickard. Yet it offers no guidance for whether or how that monumental task should be undertaken.

Consider another case. In 1954, in Brown v. Board of Education, a unanimous Supreme Court relied on the Fourteenth Amendment’s equal protection doctrine to end de jure racial segregation in schools by overturning the infamous 1896 decision in Plessy v. Ferguson, that enshrined the “separate but equal” doctrine. But did the text of the Equal Protection Clause require that result? Not likely. The original public meaning of Equal Protection concerned the enforcement of the criminal law, not the distribution of public benefits from education, which is one reason why Brown proved so difficult to write. Nonetheless, a “faint-hearted originalist” like Justice Scalia would have joined a unanimous Court in 1954 to help end the segregation that flourished in part due to the systematic denial of the franchise to blacks citizens.

A different set of challenges to textualism is tied to the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” In Heller v. District of Columbia, Justice Scalia held that there was a constitutional right to keep and bear handguns subject to the power of the government to impose, under the police power, reasonable restrictions on their use. But this interpretation violates two of the textualist canons that Bolick supports.

First, as Justice John Paul Stevens wrote in dissent, Scalia treated the introductory clause of the Second Amendment as “mere surplusage,” without noting that it has a perfectly intelligible purpose. Articles I and II of the Constitution set out the distribution of power over the militia between the Congress, the President, and the states because the militia had dual state and federal functions. On this reading, the Second Amendment as a whole provides that the federal government cannot restrict the right of the citizens of the states to keep and bear arms essential to performing their role in state militias, whether or not they are called into federal service. Accordingly, the Second Amendment does not apply to the District of Columbia—the one place with no federal/state relations. That same structural focus explains why the Second Amendment does not, through the Fourteenth Amendment, limit the power of states to regulate local gun ownership, as was wrongly held in 2010 in McDonald v. City of Chicago.

Second, Scalia’s interpretation requires reading into the Constitution some notion of the state’s police power—i.e., its general power to regulate—because the right it protects is “not unlimited.” As Scalia writes, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Each of these exceptions appeals to the police power, a phrase found nowhere in the Constitution, which then must be first interpreted and then applied to the myriad of federal and state gun regulations.

This point about the police power has far broader implications. The substantive provisions of the Bill of Rights and the Fourteenth Amendment are all stated in absolute form. The First Amendment, for example, holds that Congress shall pass no law abridging the freedom of speech or of the press. But the vast body of preexisting common law rules governing defamation, misrepresentation, picketing, intentional infliction of emotional distress, and invasion of privacy were not thereby rendered unconstitutional. It is not all forms of speech that are protected. The idea of “freedom of speech” can only be rendered intelligible if federal and state governments may enact laws that regulate impermissible speech forms. Fraud is not constitutionally protected. And if the common law damage action after the fact is insufficient to protect against these abuses, it is perfectly proper for either or both levels of government to strengthen their protections. But the text of the First Amendment offers no textual guidance, so it is necessary by non-textual means to identify the permissible ends of government power, and to decide what means are appropriate to achieve them.

A similar analysis applies to the government taking of private property and to its regulation of economic liberties. The protection of private property does not allow anyone to use the guns they own to threaten violence against others. Nor may any individual use his or her property to commit public or private nuisances by casting noise, fumes, or filth onto the land of another, or to pollute public rivers or streams.

Organizing these police power limitations is entirely non-textual. The nineteenth-century Justices were wary of construing the police power so broadly that it left nothing of the constitutional rights that received explicit textual protection under the Constitution. Their formulaic definition of the police power, as stated in the 1905 Supreme Court case of Lochner v. New York, allowed the state to regulate in the name of the “health, safety, morals, and general welfare” of the public at large. But it was an interpretive exercise that let the state regulate the level of fumes in the workplace or displace the ordinary tort law of industrial accidents with a scheme of workmen’s compensation that dispensed without having to prove either the employer’s negligence or disprove the worker’s assumption of risk. Broad as those police power purposes were, before the New Deal they did not allow for passage of a minimum wage law, or the adoption of mandatory collective bargaining laws. Maximum-hour laws were a source of constant disagreement. But these constitutional limitations were all swept away by the New Deal that allowed these multiple forms of regulation. The need to overcome what the National Labor Relations Act called the “inequality of bargaining power” between employers and employees was sufficient to justify collective bargaining by assuming that competitive markets generate market failures that the government may rectify under this expanded definition of the police power.

Substantively, I strongly favor Lochner’s narrower account of the police power over the elastic modern tests that only ask the government to show rational basis to sustain highly intrusive legislation. But the appropriate level of scrutiny for legislation is entirely orthogonal to the textualist approach. It takes a theory—not merely a reference to the text—to explain which police power limitations are permissible and which ones are not. I believe that the classical liberal approach that stresses strong property rights and limited government justifies the narrower view of the police power. But constitutional interpretation remains so difficult because, though we must start with a scrupulous reading of the text, the law presents innumerable cases that require judges to go beyond it.

© 2018 by the Board of Trustees of Leland Stanford Junior University

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  1. Unsk Member

    Fine and timely post.

    If only the government in it’s attempts to protect the health, safety, morals and public welfare per Lochner, were required to prove substantially, not merely claim it so, that whatever act is considered actually does improve the general welfare. Much of our current law like Obamacare, Dodd Frank and Sarbanes Oxley to name just a few clearly after everything is said and done does not actually improve the general welfare, but degrades it.

    • #1
    • March 5, 2018, at 6:23 PM PST
    • 1 like
  2. James Gawron Thatcher
    James GawronJoined in the first year of Ricochet Ricochet Charter Member

    Richard Epstein: I believe that the classical liberal approach that stresses strong property rights and limited government justifies the narrower view of the police power. But constitutional interpretation remains so difficult because, though we must start with a scrupulous reading of the text, the law presents innumerable cases that require judges to go beyond it.

    At the risk of disagreeing with you, I think this is a bit of a strawman. We are living in the age of deconstruction in which there is no meaning that conforms to reality. By this dim light, the meaning of all texts is completely fluid. I think you would agree with me that not being a textualist would be the death of the Law itself. Every lawyer must be a textualist first or he or she is doing nothing but bloviating.

    Higher textual interpretation is as old as the Talmud. Of course, to precisely use the text in the real world we must refine the meaning by powerful analytical concepts. I don’t think it is right to refer to this as going beyond the text. I would call it a deeper analysis of the text. You never really go beyond the text or you would make the text irrelevant and once again the law itself would implode.

    Although this might feel like nit-picking to you and me, my suspicion is that this is a great revelation of integrity to those young who have been schooled in the nihilistic deconstructionist environment. They don’t need an even greater invitation to explore wild random word associations. They need someone to remind them of the responsibility and discipline that is the hallmark of the Law.

    Regards,

    Jim

    • #2
    • March 5, 2018, at 6:29 PM PST
    • 2 likes
  3. Gary Robbins Reagan

    Clint Bolick is an excellent member of the Arizona Supreme Court where he serves with distinction, after being the Executive Director of the Goldwater Institute. President Trump would be well served to consider Clint Bolick for the Ninth Circuit.

    • #3
    • March 6, 2018, at 2:53 AM PST
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  4. Doug Watt Moderator

    When I hear advocates speak of the living Constitution in my mind I picture them with both hand wrapped around the Constitution trying to strangle it to death.

    • #4
    • March 6, 2018, at 7:14 AM PST
    • 4 likes
  5. Old Bathos Moderator

    I prefer a more radical anti-federalist reading of the Second Amendment. Given that the unambiguous purpose of the Bill of Rights is to prevent abuses by federal power, the real-world necessity of the “well regulated militia” means we cannot disarm the government. Because we cannot disarm the government, we need to keep arms ourselves.

    The notion that the right depends on our prospective participation in the militia is a stretch. Stevens in his Heller dissent is also a bit disingenuous by implying that the majority says that the Second Amendment prohibits regulating the use of guns rather than possession and ownership. An appeal to Heller by an armed robber or murderer would not be terribly effective defense.

    • #5
    • March 6, 2018, at 7:16 AM PST
    • 1 like
  6. jaWes Member

    Old Bathos (View Comment):
    The notion that the right depends on our prospective participation in the militia is a stretch.

    I didn’t think this is what he’s arguing. Rather that the 2nd amendment only restricts the federal government, not the states. In that interpretation, Congress would not be able to prevent someone in Chicago from owning a gun, regardless of whether they are in a state militia, but the state of Illinois can. On the face, this seems somewhat sensible if the only purpose of the amendment was to ensure states could maintain their own militias, supplied by privately owned firearms.

    The problem I have is that those who would argue that the 2nd amendment does not guarantee an individual right would not make the same arguments for the other bill of rights amendments. The 1st amendment specifically states “Congress shall make no law,” but let’s see what happens if Utah tries establishing Mormonism as the state religion under the defense that the 1st amendment only applies to Congress. Anyone think that an argument that the 1st amendment only applies to Congress (despite the fact it explicitly states that) would hold much water?

    I’d like someone to convince me that amendments 1, 4, 6, 7, and 8 are all individual rights that states cannot infringe on, but the founders intended amendment 2 only to apply to the feds and states can do whatever they want regarding guns.

    • #6
    • March 6, 2018, at 9:58 AM PST
    • 2 likes
  7. Bob Wainwright Member

    Scalia was right that the first words of the 2nd Amendment are surplusage, not because they tell us nothing about the meaning of the amendment, but because they don’t restrict its meaning to something less than it would have without those words. The only way to read it to restrict its meaning is to read it as if the amendment creates or grants the right to bear arms, rather than protects a pre-existing right to bear arms from infringement.

    It’s clear from the way the text speaks of this and other rights that the rights are pre-existing. They are not granted by the Constitution. They are merely mentioned for special consideration so as to be protected:

    Congress shall make no law abridging the freedom of speech…or the right of the people peaceably to assemble..  The rights mentioned here already exist, and already belong to the people ( “of the people” ), and shall not be abridged. If the rights mentioned here didn’t already exist, the wording here would be incoherent.

    …the right of the people to keep and bear arms shall not be infringed. The right which already belongs to the people is protected from infringement, and is mentioned here because it’s important to the operation of the militia. (“Of the people” means individual right just like the phrase is used in the first and fourth amendments, where it clearly denotes an individual right). What comes before the clause is surplusage to the same degree as the first words of the patent clause of Article 1 section 8: “Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” As others have pointed out, the explanatory clause about promotion of arts and progress doesn’t mean that Luddites who write books against progress aren’t entitled to copyright protection.

    The right of the people to be secure in the persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated… Once again, it doesn’t say that “people are hereby granted the right to be secure”, but that their right to be secure (which they already have) shall not be infringed.

    • #7
    • March 6, 2018, at 11:16 AM PST
    • 1 like
  8. Old Bathos Moderator

    jaWes (of TX) (View Comment):

    The problem I have is that those who would argue that the 2nd amendment does not guarantee an individual right would not make the same arguments for the other bill of rights amendments. The 1st amendment specifically states “Congress shall make no law,” but let’s see what happens if Utah tries establishing Mormonism as the state religion under the defense that the 1st amendment only applies to Congress. Anyone think that an argument that the 1st amendment only applies to Congress (despite the fact it explicitly states that) would hold much water?

    The Supreme Court has held that the 14th Amendment means that state and federal governments are both prevented from establishing religion. So any argument about what the federal government is barred from doing with respect to the Bill of Rights should also apply to the states since the 14th Amendment incorporates the states too. That doctrine was developed by liberals in the context of the ongoing push to kick religion out of the public square begun by the Warren court.

    This doctrine would presumably bar any state from having restrictive gun laws not consonant with the Second Amendment when it would otherwise be the case that states could impose restrictions the feds could not.

    • #8
    • March 6, 2018, at 11:18 AM PST
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  9. Sabrdance Member

    jaWes (of TX) (View Comment):

    Old Bathos (View Comment):
    The notion that the right depends on our prospective participation in the militia is a stretch.

    I didn’t think this is what he’s arguing. Rather that the 2nd amendment only restricts the federal government, not the states. In that interpretation, Congress would not be able to prevent someone in Chicago from owning a gun, regardless of whether they are in a state militia, but the state of Illinois can. On the face, this seems somewhat sensible if the only purpose of the amendment was to ensure states could maintain their own militias, supplied by privately owned firearms.

    The problem I have is that those who would argue that the 2nd amendment does not guarantee an individual right would not make the same arguments for the other bill of rights amendments. The 1st amendment specifically states “Congress shall make no law,” but let’s see what happens if Utah tries establishing Mormonism as the state religion under the defense that the 1st amendment only applies to Congress. Anyone think that an argument that the 1st amendment only applies to Congress (despite the fact it explicitly states that) would hold much water?

    I’d like someone to convince me that amendments 1, 4, 6, 7, and 8 are all individual rights that states cannot infringe on, but the founders intended amendment 2 only to apply to the feds and states can do whatever they want regarding guns.

    I see the problem appear in the 14th Amendment. 1, 4, 6, and 7 only applied to the federal government to begin with. New York had censorship laws, Virginia had an established religion, not every state afforded criminals trial by jury, nor did most states provide counsel to defendants. All of that comes later, after the 14th Amendment.

    So while it may be true that the 2nd Amendment only prevents the Federal Government from disarming the states, it is also clear that this isn’t what the people writing the 14th Amendment thought (and Congress passed laws to this effect).

    Selective incorporation strikes me as a doctrine rife with potential for judicial meddling. All or none.

    • #9
    • March 6, 2018, at 11:27 AM PST
    • 1 like
  10. Unsk Member

    While most above are concerned about the 2nd Amendment, I believe most of the post was about Constitutional interpretation regarding all our laws.

    Since at present, the employment of men and blacks is at the lowest level on recored( a very bad thing indeed) and as a result retailers, fast food establishments and malls that cater to the middle and working class are struggling to stay solvent. In addition, the propensity to marry and to raise children as a result of such a dire economic malaise are also doing quite poorly. In lieu of such facts, one should look for cause. I nominate without hesitation our current over-regulation fetish that wants to regulate virtually everything that moves. Wages have stagnated for many years, while the cost of living particularly in regards to Housing, Food, Health Care and Energy have skyrocketed. Such over-regulation makes economic growth extremely difficult and as a result the hiring of new employees problematic. Wages usually rise as the demand for new hires heats up, but if a job is hard to come by, wages stagnate as has happened. Middle class families, particularly the working poor are put in a financial squeeze with an almost constantly rising cost of living pitted against wages the are not going up to meet those costs.

    Such a dire malaise affecting millions of Americans I believe is more than enough justification for a wholesale return to the judicial thinking supporting Lochner vs New York, and a thorough abandonment of our current hyper regulatory – regulate anything that moves thinking.

    • #10
    • March 7, 2018, at 9:32 AM PST
    • Like
  11. Profile Photo Member

    jaWes (of TX) (View Comment):

    Old Bathos (View Comment):
    The notion that the right depends on our prospective participation in the militia is a stretch.

    The problem I have is that those who would argue that the 2nd amendment does not guarantee an individual right would not make the same arguments for the other bill of rights amendments. The 1st amendment specifically states “Congress shall make no law,” but let’s see what happens if Utah tries establishing Mormonism as the state religion under the defense that the 1st amendment only applies to Congress. Anyone think that an argument that the 1st amendment only applies to Congress (despite the fact it explicitly states that) would hold much water?…

    Since the 14th Amendment, the game is changed. Massachusetts was able to maintain the establishment of the Congregational Church until the state dissolved it in 1833. Connecticut and New Hampshire had state churches until 1819 and 1818, again dissolved by the people of those states. The understanding was that the 1st Amendment only applied to Congress.

    So, it will be interesting if the court should suddenly change this trend, not that progressives would be in the least bit consistent, fair, or honest about it.

    • #11
    • March 7, 2018, at 10:21 AM PST
    • Like
  12. Profile Photo Member

    This is an important idea because we need to be able to have a Constitutional theory that can address things the text cannot that is both consistent, yet somewhat flexible, and logical. I hope this might become a series of essays on the topic.

    • #12
    • March 7, 2018, at 10:26 AM PST
    • 1 like

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