Textualism, originalism… so what’s up with that?


Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.

Thomas Jefferson

A Constitution of Government once changed from freedom can never be restored. Liberty, once lost, is lost forever.

John Adams

Shortly, Judge Neil Gorsuch will be going through a gauntlet of hearings regarding his qualifications to be the next Supreme Court Justice. The talking heads will be droning on and on and on… about textualists, originalists, strict constructionists, the “living constitution” – it will be mind-numbing. Perhaps this will help.

In the context of United States constitutional interpretation, originalism is a principle of interpretation that views the Constitution’s meaning as fixed as of the time of enactment.

Textualism is a formalist theory that primarily interprets the law based on the ordinary meaning of the legal text, and not considering non-textual sources such as intention of the law when passed, the problem it was intended to remedy, or significant questions of the justice and rectitude of the law.

In the United Statesstrict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. Strict construction requires a judge to apply the text only as it is written. Once the court has a clear meaning of the text, no further investigation is required.

However, “strict constructionism” is not a synonym for textualism or originalism. Antonin Scalia, who is being replaced by Judge Gorsuch, was a major proponent of textualism, and said that “no one ought to be” a strict constructionist. Sorry, I don’t understand it either, but of course, I am not a legal genius like Antonin Scalia.

I happen to agree with those Americans who are “textualists” (I am not offering myself as a Constitutional scholar here to explain its true meaning). However, I believe that the United States Constitution is a unique document in the history of man. It came about through truly unique circumstances. First, 13 colonies with a small population managed to defeat the most powerful empire on earth – kind of like Uganda taking on the USA today and beating the snot out of us. Indeed Britain was one of the most powerful empires the world had ever known. It ranged vastly (we were stuck in an inhospitable corner of a largely uninhabited continent), had the most powerful navy (we had predominantly merchant ships), and the most disciplined army that ever marched (we mostly had militiamen, farmers really).

Second, we had a once-in-an-age coalescence of some of the greatest political thinkers in history: Jefferson, Adams (both John and Sam), Monroe, Hamilton, and on and on and on. Finally, there was an astonishing meeting of the minds following remarkable disagreement among our founding fathers about what should be “in” the Constitution and, indeed, whether there should “be” a Constitution (Delaware did not even send representatives to the Constitutional Congress, so the framers could pretty much count on a “no” vote from Delaware. Indeed, this is the most likely reason that ratification of the Constitution did not require a “unanimous vote.” Only nine colonies were required for ratification).

As a further note, not a single framer had any idea whether “a nation so conceived could long endure.” It has indeed been a test of time and endurance. So far the results of their labors have been pretty good, but not perfect, and our preeminence as first among nations is far from guaranteed.

I look at the Constitution like the Sermon on the Mount, the Mona Lisa, or the David statue. You don’t rewrite the Sermon on the Mount (you don’t need to agree with it, but you CANNOT REWRITE IT). You do not add a splash of color to the Mona Lisa, or chip away at David’s nose because “times have changed” or “the Europeans are doing it differently” than we are! Because the document is unique, I believe that it should not be tampered with unless it is “tampered with” in the manner set forth in its pages – an amendment must be proposed and then ratified.

Two-thirds of both houses of Congress must vote to propose an amendment, or two-thirds of the state legislatures must ask Congress to call a national convention to propose amendments. (This method has never been used.) Then three-fourths of the state legislatures must approve the new amendment, or, alternatively, ratifying conventions in three-fourths of the states must approve it. This method has been used only once — to repeal prohibition (i.e., to ratify the 21st Amendment).

Does that sound to you like the framers wanted it to be easy to “change” the Constitution or, in their wildest of imaginings, to allow one person, a President, for example, or even an entire Congress to change its meaning or application to even a single citizen of the United States? The answer is clearly “no.” The entire document is designed to prevent exactly that outcome.

However, our Constitution has an enemy that appears to wield enormous power to change the document that brought greatness to America. These enemies are judges who consider it a “living, breathing document” and change the application of this document to whole swaths of the population. They exercise their own power over others. Justice Scalia characterized the notion of a “living Constitution” like it was a Magic Slate. You can write on it, get the interpretation you want, then lift up the plastic screen, and then re-write the Constitution according to the passions of the moment. Why do judges with this mindset exercise this unlawful power (at least “unlawful” in my humble opinion)? Because they know best! We oafish, doltish Americans (and, apparently, the Constitutional Congress) need their guidance.

“To support and defend the Constitution” is a phrase incorporated into the oath taken by each public official in our country including judges – an OATH*. Imposing an individual’s will from the bench – even the bench in the highest court of the Land – is not what the Constitutional Congress wanted. There have only been 27 amendments to the Constitution and the first ten (the Bill of Rights) were all passed in 1791. The remaining 17 took 201 years to pass (the 27th Amendment regarding Compensation of Members of Congress passed in 1992). It is also worth remembering that it took two of the 17 to get back to square one – i.e., the passage and then repeal of prohibition. The lesson seems remarkably simple to me, activist judges fail their oath of office when they singlehandedly alter the document. They are not “defending” the Constitution!

What can be done to turn an entire nation back toward the founding principles inscribed in our most beloved document by the Constitutional Congress? Can one individual propagate a philosophy on a scale large enough to make a difference? The answer is that when the question is thusly posed, “one individual” can’t do it. However, there is no rational reason to pose the question in this manner. As Ayn Rand frames it, suppose you are a doctor in the midst of an epidemic. Would your plan of action be to singlehandedly restore health to the millions of afflicted in the nation? Of course you would not attempt such a patently absurd solution. You would know that either working on your own or with the medical establishment you would reach as many people as you could to the best of your ability.

I believe Judge Gorsuch to be a good step in the right direction. We do not require a wide scale of action. Ideas dominate a nation’s culture. “In an intellectual battle you do not need to convert everyone. History is made by minorities or, more precisely, history is made by intellectual movements which are created by minorities” (Ayn Rand).

Roy Filly

*Oath of Office for Federal judges:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

In 1789, the 1st United States Congress passed the Judiciary Act of 1789, which established an additional oath taken by federal judges.

I do solemnly swear (or affirm), that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me, according to the best of my abilities and understanding, agreeably to the Constitution, and laws of the United States. So help me God.

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About Roy Filly

Please read my first blog in which I describe myself and my goals.
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