Harvard’s Cass Sunstein rearticulated criticisms of “originalism”the theory that judges should construe legal texts using the original public meaning of its wordsin 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.