Some people are textualists; they think that judges should always follow the text of the relevant law. Some people are originalists; they think that the text should always be interpreted in accordance with its original public meaning.
Many people are textualists and originalists. Justices Clarence Thomas and Amy Coney Barrett are just two. They want to follow the text, and they think that the text should be interpreted to fit with its original public meaning.
Textualism and originalism are often linked, both by their devotees and by their critics. For some people, it is almost as if textualism and originalism are one word (“textualismoriginalism”!). But a flood of recent work suggests that there are tensions between them.
Professor Prakash, of the University of Virginia Law School, has a lot of credibility here. He is an exceptionally distinguished scholar, and he has been drawn to both textualism and originalism.
But his recent historical work suggests a serious problem: “The Founders were not textualists.” (See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4983925.)
As he shows, the founding generation believed in the “spirit” of the law, and sometimes the spirit would trump, or defeat, the letter of the law. In short: the founding generation rejected textualism, certainly in the sense that modern textualists understand it. The reason is that they cared about (1) “spirit” and (2) consequences.
Indeed, they thought that an assessment of consequences was not independent of but was central to the ascertainment of legal meaning.
Prakash calls it “the inconvenience doctrine.” (See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5174242.) The basic idea is that if an interpretation would have inconvenient consequences, it should be disfavored.
Thus Prakash:
People would argue that an opposing argument had to be erroneous because its consequences were harmful or even calamitous, what some called an “argumentum ab inconvenienti.” But the more general category was an argument from consequences. Indeed, people occasionally argued that their preferred reading yielded beneficial consequences. Because it was easier to claim uncertainty as to meaning than to assert that the law as written was absurd, the Inconvenience Doctrine might have been more impactful than the absurdity doctrine.
Want some drama? Here’s some drama:
Alexander Hamilton, James Madison, and Joseph Story, endorsed the Inconvenience Doctrine. They understood that when the meaning was uncertain, consequences decided the meaning of the law. To my knowledge, no one at the Founding voiced misgivings about, much less challenged, the principle that consequences could settle meaning. Rather, Thomas Jefferson spoke for many when he said arguments from inconvenience were one of the “great foundations of the law.”
Here, in short, is the problem. Textualists often insist that it is impermissible, a violation of a taboo, to consider consequences in deciding on the meaning of the law. Consider, for example, the Holy Trinity case, a kind of textualist’s bete noire, where the Court rejected what seemed to be the plain meaning of the text in order to avoid a most inconvenient result. Prakash shows that for constitutional and statutory provisions, the founding generation practiced a method close to that of the Holy Trinity Court, not of textualism.
What is a modern textualist to say, if committed to originalism?
One response would be to say: If I am an originalist, I cannot be a textualist, at least not of the kind I thought I was. I am an originalist, first and foremost, so I am not a textualist, at least not of that kind.
Another response would be to insist: Sure, consequences matter, but only when the text is ambiguous. As between one textually permissible interpretation and another textually permissible interpretation, courts might use the one that has the best consequences. (True, textualists and originalists might not come to this position without kicking and screaming. But still.) But still, the text has a kind of priority. Where it is clear, matters are at an end.
Prakash’s evidence undermines this response:
Textualists might suppose that when the text was clear, consequences could not have mattered. After all, textual clarity in our era often cuts off recourse to other factors or doctrines. In fact, Founding-era interpreters sometimes weighed the consequences even in this context because while the text might be unambiguous, the meaning of the law might not be. Again, in the eighteenth century, people did not imagine that the text was the only indicator of meaning. Hence someone might say that an unambiguous text nonetheless had an uncertain meaning.
Uh oh.
Here’s another possible response from originalists who are also textualists. In short: The argument for originalism and textualism does not depend on history. It does not matter whether the founding generation believed in textualism!
We should follow the original public meaning of legal texts even if the founding generation did not believe that we should do that. The reason we follow the original public meaning of legal texts is normative, not historical. We follow the original public meaning of legal texts because doing that promotes rule of law values, and other values too: It disciplines the judges; it promotes certainty; it gives the right incentives to Congress; it promotes stability over time.
Lawrence Solum, who is in my view the most careful defender of originalism, and the best, argues in these general terms. [https://scholarship.law.upenn.edu/penn_law_review/vol172/iss4/1/] Some of us are not convinced by his (powerful) argument, but we can agree that he has identified the terrain on which the choice of a theory of interpretation, originalist or not, must be defended.
Note, however, that many originalists, in the academy and elsewhere, do not want to argue on that terrain. They want to argue on historical grounds, or at least, they want to claim that their preferred approach maintains fidelity with the approach favored during the founding era. The affective pull, we might call it, of originalism lies in that claim of fidelity. See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5008050
Prakash and others have shown that the founding generation did not embrace textualism, and that those who do so are repudiating their preferred approach to interpretation. We might be tempted to say: You can be an originalist or you can be a textualist, but you can’t be both.
I think that’s not quite right, for the reasons suggested above, but it’s a serious challenge. If you are inclined to be a textualist and an originalist - a textualistoriginalist - you really do have to grapple with Prakash’s recent work.
I’d question the premise of this piece. While “originalism” is usually associated with interpreting constitutional provisions dating from the founding, it doesn’t mean following everything the founders thought. It simply means applying constitutional (or statutory) text in accordance with its contemporary (original) public meaning, i.e., as its words were understood at the time of its enactment, whenever that was.
The piece also leaves out two main arguments in support of textualism/originalism: (1) In the case of written law—constitutional or statutory—the law is in fact what its words say; thus, any credible interpretation must be anchored in and faithful to the text. (2) In our democracy, questions about whether the consequences of a law are “good” or “bad” and what should be done about potential bad consequences should be left to the elected representatives of the people, not (usually unelected) judges. The one narrow area in which judges can legitimately depart from the plain meaning of a law is where it produces obviously absurd consequences, such as an apparent drafting error.
I believe the only real limitation on textualism/originalism is practical rather than conceptual. Constitutional provisions and statutes are often written in broad, ambiguous language that precludes consensus on their contemporary public meaning. I remember one SCOTUS decision where all the justices agreed that the issue should be resolved based on a statute’s plain meaning but couldn’t agree on what the plain meaning was.
I like to imagine an SNL sketch of the framers in that sweltering, dreary room in Philadelphia. Someone stands up and says, “Gentlemen, I think we ought to include a few of those principles from Locke or Montesquieu, you know, the obvious stuff about human nature and government.” Everyone nods, a few fans flutter, maybe Franklin sighs. Then another voice pipes up, a guy with a quill in his hand and a long scroll unfurled in front of him, “Wait, what about that fella James? He’s got a good way of putting things.” And so they hand the scroll to Madison, who straightens his coat and starts writing.
Of course, that’s absurd. But the picture sticks with me, because it didn’t seem like the framers were inventing meaning out of thin air. Rather, there appeared to be a solid attempt to capture principles in the most elegant and capacious way possible, for a public that would ratify it. The words mattered, of course. Writing them down gave those ideas authority and force. But the text was more like a liturgical creed than a code, a way of giving shape to what they believed already existed, rather than creating something entirely new.
I personally don’t think “spirit” is the most precise word for this. It suggests some higher power or divine authority beyond the human experience. What they were doing, I think, was more human, articulating the general principles they believed underlay political life and fixing them in language that could guide future generations. In that sense, the Constitution’s words approximate a kind of general law, an attempt to translate what they thought was already given in reason and experience.
And maybe that’s why I’m mostly a positivist. Because what they left out of that affirmation mattered too, even if, looking back, you feel they missed quite a few principles.