New Textualism: The Potholes Ahead

NOTES • DISCUSSIONS • BOOK REVIEWS

New Textualism: The Potholes Ahead

GREGORY BASSHAM and IAN OAKLEY

1. The Emergence of New Textualism

Since at least the 1970s, liberal and conservative constitutional theorists have tendedto fall into two sharply divided camps (Calabresi 2007; Goldford 2005). Conservativessuch as Robert Bork and Justice Antonin Scalia have supported “originalism,” anapproach to constitutional interpretation that accords binding authority to theoriginal intentions, understandings, or meanings of those who wrote, ratified, oradopted the Constitution (Bork 1990; Scalia and Garner 2012). Liberals such as PaulBrest, Ronald Dworkin, Justice Stephen Breyer, and former Justice William Brennanhave argued for “living constitutionalism” or “nonoriginalism,” which claims thatthe Constitution must evolve to meet changing values and circumstances (Brennan1986; Brest 1980; Breyer 2005; Dworkin 1996). For at least forty years, these twosides have been locked in a contentious debate, with neither gaining a decisivevictory. Only in the past decade or so has a grand bargain, so to speak, emerged. Tounderstand how that convergence came about, it will be helpful to begin with a briefdescription of new textualism.

Textualism, in the broadest sense, can roughly be defined as an approach to legalinterpretation (particularly statutory and constitutional interpretation) that accordsprimacy to the words, or textual meaning, of a legal document, as opposed to thesubjective intentions or purposes of the document’s authors or the “spirit” of thedocument. Textualists tend to read legal documents relatively literally, focusing onwhat the words conventionally “say,” rather than on what the lawmakers may havesubjectively “meant.” In philosophical terms, they focus on contexualized “sentencemeaning”—the conventional meaning of words in context—as opposed to “spea-ker’s meaning,” what an individual speaker or writer meant or intended to say ona particular occasion (Martin 1987; Moore 1981).

As a theory of statutory interpretation, textualism has long had its defenders(Jones 1939). As a rule, “old textualists” were willing to consider legislative historyand other extrinsic sources when a legal text was vague, ambiguous, or for some

bs_bs_banner

Ratio Juris. Vol. 28 No. 1 March 2015 (127–48)

© 2015 The Authors. Ratio Juris © 2015 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 MainStreet, Malden 02148, USA.

other reason had no “plain meaning” (Black 1911, 37; Reynolds 1980, 215–7). In theearly and mid-1980s, a new and more rigorous form of textualism emerged—so-called “new textualism”—which generally denied that judges could rely on legis-lative history or most other extra-textual sources at all (Easterbrook 1983). JusticeScalia was an early and influential defender of new textualism. In his view, if thewords of a law are clear in context and lead to no absurdity, no further inquiriesare needed or permissible; the language must be applied in its ordinary meaning.If the words are not clear in context, interpreters should try to ascertain the original“objective public meaning” of the words, that is, how a reasonable and informedcitizen would have understood the language at the time the law was enacted (Scalia1997, 17, 45; Scalia and Garner 2012, 33–4, 401).

In the mid-1980s, a number of conservative legal scholars, led by Scalia, beganarguing that a textualist approach should be applied to the Constitution as wellas to statutes (Scalia 1987). Around that same time, several scholars began todistinguish “moderate” from “strict” versions of originalism. Though formula-tions varied, one common way of making this distinction was to say that whereasstrict originalists looked to the adopters’ “specific intentions” or expected appli-cations, moderate originalists sought the “underlying principles” or “semanticintentions” of the adopters. Such principles or intentions might be quite generalor abstract, and consequently might conflict with the adopters’ expected ordesired applications (Bassham 1992, 51; Brest 1980, 223). This led some commen-tators to suggest that the differences between originalist and nonoriginalistapproaches to constitutional interpretation might not be so great after all. Somescholars, in fact, began to argue that originalism, properly understood, was aninterpretive approach that all judges and constitutional theorists should accept,both liberals and conservatives alike. By the early- to mid-1990s, this view hadbecome encapsulated in the oft-repeated slogan, “We are all originalists now”(Perry 1991, 718; Tribe 1997, 67). Soon thereafter, constitutional scholars RandyBarnett and Keith Whittington popularized the term “new originalism” todescribe what they saw as the emerging consensus view (Barnett 1999, 620;Whittington 2004). In recent years, a number of high-profile liberal constitutionaltheorists, including Akhil Amar, Jack Balkin, and Lawrence Solum, have embracednew originalism or, as Ryan and we call it, “new textualism” (Amar 2005; Balkin2011; Solum 2009).1

1 As Ryan (2011, 1552) notes, the term “new textualism” “is not a moniker currently infashion.” Some self-described new originalists have expressed doubts about whether theirviews can accurately be characterized as “textualist” (Solum 2009, 119). Solum notes thatcertain forms of textualism may exclude certain elements of semantic meaning (e.g.,implicatures and some kinds of linguistic context) that living originalists like himself wish toinclude. In addition, it is dubious to call any theory “textualist” if it allows wide departuresfrom what the text actually says. A textualist must not merely “give primacy” to the text; shemust stick close to its actual words, rather than reading into it things not fairly expressed orimplied. The gravitational force of the words, so to speak, will always impose limits on howfar from a text’s words a textualist can stray (Bassham 1992, 26–7). On this issue, theterminology is currently in flux. In this paper we shall follow Ryan in using the terms “neworiginalism” and “new textualism” interchangeably, while acknowledging that the equationmay be problematic.

128 Gregory Bassham and Ian Oakley

© 2015 The Authors. Ratio Juris © 2015 John Wiley & Sons Ltd. Ratio Juris, Vol. 28, No. 1

2. What is New Textualism?

Like originalism, new textualism is best understood as a family of related theoriesrather than as a unitary construct. New textualists can and do disagree on a varietyof issues, including:

a) Whether new textualism is exclusively a theory of constitutional interpretation,or whether it applies to other forms of legal interpretation (statutes, wills,contracts) as well. (For purposes of this discussion, we shall assume theformer.)

b) Whether the theory applies only to how judges should interpret the Consti-tution, or also to other interpreters, such as political officials, jurors, scholars,or anyone who wishes to read and understand the constitutional text.

c) Whether new textualism is simply a theory of constitutional interpretation(i.e., roughly, a theory about how to determine the Constitution’s originalmeaning), or also includes strategies of constitutional adjudication, implemen-tation, or construction (such as a particular theory of stare decisis or apresumption of constitutionality in cases where there is no clear violation ofconstitutional language).

d) Whether original textual meaning is absolutely or only presumptively binding(e.g., whether it can be overridden by settled precedent, countervailingjudicial canons of construction, pragmatic considerations, or constitutionalemergencies, such as the Civil War).

e) What counts as “original semantic meaning.” (Are necessary logical implica-tions of particular provisions included? “Core” or “paradigm” applications?The underlying principles the adopters believed they were enacting intolaw? Structural implications of multiple provisions? Conversationalimplicatures? Constitutional “silences” or gaps?)

f) What elements of the original “context” may be considered in seekingto ascertain original meanings. (Only the surrounding words? The docu-ment as a whole? The corpus juris as a whole? Publicly available factsabout the drafting and ratification of the relevant provision? Some broaderlegal, historical, and political context? Long-recognized canons ofconstruction?)

g) Whose original meanings count. (Should interpreters seek to discover themental states of actual historical people? If so, which people? Voters? Citi-zens? All competent language users, including slaves and Native Ameri-cans? Or should interpreters seek an “objectified” intent, a hypotheticalconstruct like tort law’s “reasonable person” or Patrick Devlin’s famous“man on the Clapham omnibus” (Devlin 1965, 15)? If an objectified intentis sought, should the hypothetical Adopter be “reasonable,” “ordinary,”“informed,” “competent in the language”? If informed, informed of what,precisely?

h) Whether grand phrases such as “equal protection of the law,” “privileges orimmunities,” “due process of law,” “freedom of speech,” and other broadlyworded provisions express underlying principles that are abstract or rela-tively specific, and whether they “delegate” future generations with thetask of concretizing meanings or determining appropriate applications.

New Textualism: The Potholes Ahead 129

© 2015 The Authors. Ratio Juris © 2015 John Wiley & Sons Ltd.Ratio Juris, Vol. 28, No. 1

While this list is far from exhaustive, these are some of the major dimensions onwhich new textualists may (and often do) disagree. On what must they agree? AsSolum (2011, 4)2 has suggested the core of new textualism seems to lie in thefollowing four commitments:

— The fixation thesis: The semantic meaning of the constitutional text was fixedat the time each provision was framed and ratified (Barnett 2011, 66; Balkin2011, 36–8; Ryan 2011, 1539; Whittington 1999, 56–7).

— The public meaning thesis: Constitutional meaning is fixed by the under-standing of the words and phrases and the grammar and syntax thatcharacterized the linguistic practices of the public and not by the intentionsof the framers or adopters (Balkin 2011, 13; Ryan 2011, 1532–4; Scalia andGarner 2012, 16).

— The textual constraint thesis: The original meaning of the text of the Constitu-tion has legal force: the text is not a mere symbol (Balkin 2011, 35–9; Barnett,2011, 66).

— The interpretation-construction distinction: Constitutional practice includes twodistinct activities: (1) constitutional interpretation, which discerns the linguis-tic meaning of the text, and (2) constitutional construction, which determinesthe legal effect of the text (Balkin 2011, 4–6; Barnett 2004, 121–30; Solum 2010a,95).

A brief explanation of these various theses may be helpful.When new textualists say that the “meaning” of constitutional language was

fixed at the time of framing and adoption, they are speaking of what Dworkin(1996, 291) calls the “semantic” or “linguistic” meaning of a text (see Balkin 2011,13; Barnett 2011, 66). They recognize that the term “meaning” is used in a varietyof senses and that in some of these usages “meanings” can change over time(Balkin 2011, 12–3; Solum 2011b, 10–1). By “semantic meaning” they mean the kindof verbal meaning “that dictionary definitions try (but usually fail) to capture”(ibid., 10). This meaning is “a function of (1) the conventional semantic meaningsof the words and phrases that make up the text and (2) the rules of syntax andgrammar that combine the words and phrases” (ibid., 10).3 Original semanticmeanings are fixed, not in virtue of any compelling normative reasons, but simplybecause that is the way language works. Language is a social creation. There are

2 Some new textualists may reject one or more of these claims (particularly the interpretation-construction distinction). If so, new textualism can be defined more narrowly as the view,roughly, that (1) the meaning of constitutional language (with certain possible exceptions) isits original semantic meaning, and (2) the original semantic meaning is law (or should betreated as authoritative by judges and other interpreters). Since original semantic meaningsmay be (a) unknowable, (b) nonexistent, (c) inconsistent with settled precedent, or (d) notrecognized by officials as authoritative according to prevailing rules of recognition, we findthe claim that such meanings are “law” implausible.3 Note that in this sense semantic meaning does not include context. Nor does it include whatare sometimes called “interpretive intentions,” e.g., an intention to use words “correctly” or“abstractly,” or an intention or desire that later interpreters use any particular interpretivemethodology to understand or apply the text. The semantic meaning is roughly the dictionarymeaning of words, together with the linguistic conventions of syntax and grammar.



conventions of word-meaning, grammar and syntax that are a function of linguisticpractice. These practices are objective facts about the world. When a speaker uttersa word or phrase on a given occasion, that particular expression—the utterance-token, as philosophers of language call it—has a meaning (or a set of meanings)within a system of linguistic practice. That meaning cannot be changed for thesimple reason that nothing in the past can be changed (ibid., 68). The bare stringof words (the “utterance-type”) can of course come to have a different conventionalmeaning. Words can and do change their meanings. But facts about how words areconventionally used at a particular time and place are “fixed.” And this is the sensein which new textualists insist that the meaning of constitutional language remainsconstant.

What Solum calls the “public meaning thesis” reflects the shift in originalistthought from original “intentions” to original “meanings.” In identifying “consti-tutional meaning” with original meaning, the public meaning thesis affirms itscommitment to originalism as the correct theory of constitutional interpretation; itsignals its commitment to new originalism by opting for public meaning (as opposedto framers’ or ratifiers’ intentions or understandings) as the proper interpretivetouchstone. Both claims involve normative commitments, and in the followingsection we will consider how new textualists argue for them.

Solum’s “textual constraint thesis” reflects what Ryan (2011, 1526) calls “theemerging consensus about the primacy of the text” in constitutional decision-making. It is this claim—that the constitutional text is binding law, both when itspeaks clearly and when it speaks vaguely or abstractly—that serves as the centralrallying point for new textualists of all stripes.

The interpretation-construction distinction is an old classification that has beenput to new use by new textualists. First formulated by Francis Lieber in 1839, thedistinction was widely accepted in American jurisprudence for roughly a centuryand then largely fell out of favor as appeals to the “equity” or “spirit” of legal textsincreasingly came into disfavor.4 The distinction was revived by Keith Whittingtonin the late 1990s, though with some interesting new twists. New textualists do notalways agree on how the distinction should be formulated, and some theorists whomight consider themselves new textualists do not accept the distinction at all

4 Lieber defines “interpretation” as “ascertaining the true sense of the language of the writingby limiting the inquiry to a consideration and comparison of the words themselves.”“Construction” is defined as “the drawing of conclusions respecting subjects that lie beyondthe direct expression of the text, from elements known from and given in the text—conclusions which are in the spirit, though not within the letter, of the text” (Lieber 1880, 44).This makes it sound like Lieber equates construction with equitable interpretation, asWhittington (1999, 221, n.3) contends. This is not the case, however. Equitable interpretationapplies to laws that are judged to be deficient because the words, read literally, are plainlyeither overly broad or overly narrow, and thus presumably contrary to the will of thelawmaker (Bassham 1992, 2–3). A close reading of Lieber’s examples shows that he thinksconstruction is needed primarily to deal with laws that are defective because they are eitherinternally contradictory, inconsistent with some higher law, or fail to deal with unforeseen andunprovided-for cases (Lieber 1880, 44–70). Lieber’s distinction was picked up by later theoristson statutory and constitutional interpretation, including E. Fitch Smith, Theodore Sedgwick,John Bouvier, Thomas Cooley, J. G. Sutherland, and H. C. Black—though often with subtledivergences from Lieber’s account. For a comparatively recent use of the distinction, seeAntieau (1982, xviii).



(McGinnis and Rappaport 2009, 772–80; Scalia and Garner 2012, 15). On closeinspection, however, it is clear that such critics do recognize a distinction betweeninterpretation and construction: they simply categorize those activities in differentways. The basic distinction is this: Interpretation is the attempt to ascertain themeaning of a constitutional provision, whereas construction is the activity of givingthat meaning legal effect, for example, by applying that meaning to a particular case,crafting doctrinal rules that may be clearer and better suited to judicial enforce-ment, and possibly “state-building constructions” by the political branches, such asthe creation of the Justice Department or the passage of the Social Security Act, thatserve constitutional purposes and help to “build out the Constitution as they buildout the country” (Balkin 2011, 5).5

As we shall see, the seemingly straightforward distinction between discoveringconstitutional meaning and giving that meaning legal application or effect turns out to bemore complicated than it might appear. But at some level the interpretation-construction distinction is an indispensable tool of constitutional thought. Therelation between interpretation and construction is asymmetrical. A legal scholar orordinary citizen might seek to understand the Constitution—that is, interpretit—without giving it any legal effect. But it is not possible for a judge or politician toapply or build out a constitutional text without first grasping (if only imperfectly) itsmeaning. Thus, interpretation is a necessary but insufficient condition of construc-tion, whereas construction is a sufficient but unnecessary condition of interpretation.But as we shall see, complexities arise in working out the details.

3. The Real (and Apparent) Attractions of New Textualism

The swift rise of new textualism is striking. What accounts for its significant andgrowing cross-ideological appeal? In a nutshell, new textualism appears to combinemany of the strong points of both living constitutionalism and old-styleoriginalism, while avoiding many of their weaknesses. Let’s begin with thestrengths.

Old-style originalism has not played well in the legal academy since roughly theNew Deal, but it has always played well in Peoria, that is, in the minds of ordinaryAmericans. This is because the theory has obvious attractions. One is the writtennessof the Constitution itself. As Randy Barnett, Jack Balkin, and other new textualistshave emphasized, the very point of having a written Constitution is to achieve acertain clarity and fixity of fundamental law (ibid., 35–9; Barnett 1999, 629–36; Solum2011, 18–20). Some originalists put this point too strongly, claiming that theConstitution can be “law” only if its meaning is so clear and precise as to effectivelyexclude any substantive judicial discretion (Bork 1990, 143–6; Scalia 1997, 136). Amore plausible view is that the Constitution cannot be law if its meaning is somalleable and open-ended that judges cannot tell what its basic directives are,and so are free to act as a kind of continuous constitutional convention, makinguntrumpable law under the guise of “interpretation.” As Balkin notes, to treat the

5 Clearly, the creation of a federal agency or the passage of a piece of social legislation is avery different activity than applying a legal provision or creating a legal doctrine. Balkin’s“state-building constructions” do not fit with standard ways of making the interpretation-construction distinction. Accordingly, we shall ignore them here.



Constitution as binding law requires, at a minimum, that political officials acceptits plan of governance and try to implement it. To do that, they must respect itschoices about what the plan permits and does not permit. To respect these choices,they must respect the legal meanings in which these choices were expressed.“Change the concepts and you change the duty; change the duty and you change theframework; change the framework and you no longer follow the same plan forgovernment” (Balkin 2011, 37). Like old-style originalism, new textualism recognizesthe writtenness of the Constitution and the constraints that follow from thatchoice.

A second attraction of old-style originalism is the way it advances democraticvalues by respecting what is sometimes said to be the Grundnorm of Americanpolitics: the ideal of popular sovereignty (Whittington 1999, 110–59). Opponents oforiginalism have rightly noted limitations with this argument, pointing out that theprocess by which the Constitution was framed and ratified was not particularlydemocratic (Chemerinsky 1987, 17–8), and that it is not clear how the sovereigntyof “the people” is preserved when contemporary majorities are required to followrules made centuries ago by people who are no longer alive (Arthur 1989, 5; Strauss2010, 18). These points are well taken, but their force should not be overstated. Fewwould dispute that ultimate political power rightfully belongs to the people, or thatthe Constitution became valid law as a result of its ratification by the people’srepresentatives. Nor would it be widely disputed that the people have a right toestablish procedures by which that law can be legitimately amended. It is striking,in this connection, that the Supreme Court has never declared that it has theauthority to alter or amend the Constitution (Solum 2011, 19–20). Clearly, old-styleoriginalism comports better with such foundational democratic premises than domost living constitutionalist theories. New textualism, like old-style originalism,agrees that “the people” are sovereign, that they have a right to make fundamentallaw, and that the import of that law is fixed until it is changed or overridden byauthorized procedures.

A third attraction of old-style originalism is its fit with widely shared under-standings of how texts should be interpreted. In most contexts, the “meaning” ofa written or spoken text is generally identified with either the author’s intent(speaker’s meaning) or the conventional meaning of the words understood incontext (utterance-meaning) (Bassham 1992, 5).6 This is the case in ordinaryconversation, in literary interpretation, and in at least most areas of the law. AsBork (1990, 144–5) notes, the search for original meaning or intent “is the everydayprocedure of lawyers and judges when they must apply a statute, a contract, a will,or the opinion of a court.” New textualism, like old-style originalism, comportswith this widely accepted equation of linguistic meaning with original meaning orintention.

A final attraction of traditional originalism is that, unlike nonoriginalism, it is asingle unitary theory, rather than a family of disparate theories unified only by theirrejection of originalism. As Scalia (1997, 44–5) has argued, there is no agreement,

6 Some theorists make a stronger claim—that “interpretation” is essentially the search for anauthor’s intended meaning. See, e.g., Fish (2008, 1127) and Knapp and Michaels (1982, 724).For a forceful critique of this view, see Berman (2009, 41–55).



and no prospect of agreement, among nonoriginalists about which version of livingconstitutionalism should replace originalism. An advantage of new textualism isthat it seems to be the sort of big-tent theory around which judges and constitu-tional theorists of various ideological stripes might conceivably rally.

New textualists can also share in some of the major attractions of livingconstitutionalism. For liberals, these include: greater flexibility and adaptability inthe Constitution (Brennan 1986, 437); a clearer and more secure basis for manydeeply embedded pillars of twentieth century constitutional jurisprudence (e.g., onissues of segregation, gender equality, federal equal-protection, the New Dealadministrative state, and the applicability of the Bill of Rights to the states)(Bassham 1992, 97–100; Strauss 2010, 12–6); greater consistency with actual judicialpractice (ibid., 33–49); and an enhanced ability for ordinary Americans to seeconstitutional broadly worded guarantees as “objects of aspiration” (Balkin 2011,59; Perry 1994, 135) for the advancement of important values such as justice,equality, democracy, and human rights.

At the same time, new textualism arguably avoids some of the major weaknessesof both living constitutionalism and old-style originalism. The key weakness ofliving constitutionalism has always been that it seems to impose too little restrainton the ability of judges to write their own values into law (Ely 1980, 43–72). Newtextualism addresses this difficulty by accepting the binding force of originalmeaning and imposing additional restraints on judges at the level of constitutionalconstruction (Balkin 2011, 293–6).

Finally, new textualism seems to avoid some of the long-recognized weaknessesof traditional originalism. By shifting the interpretive focus from original “inten-tions” to original “meanings,” new textualists hope to avoid (or at least ameliorate)familiar problems about whose “intention-votes” count; how conflicting intentionscan be “summed” into a single, coherent principle of law; whether adequatehistorical sources exist to draw firm conclusions about original intentions; howgenerally or specifically broadly worded constitutional guarantees should be read;and whether the enforcement of unenacted or extra-textual intentions is consistentwith rule-of-law values such as clarity, fairness, and due notice (Bassham 1992,149–50; Kesavan and Paulsen 2003, 1135–9).

For all of these reasons, new textualism has emerged as an attractive alternativeto both old-style originalism and living constitutionalism. However, the road aheadfor new textualism may not be altogether smooth. As we shall argue, seriousdifficulties remain.

4. New Textualism: The Rocky Road ahead

Some of these remaining difficulties apply to all forms of originalism, includingnew textualist versions. These include issues of whether original meanings arereliably discoverable or always existent; whether originalism (in principle) canaccord sufficient weight to precedent; whether originalism would require a radicaland unjustifiable purge of modern constitutional doctrine; and whether originalismeffectively allows the “dead hand” of the past to rule the present (Bassham 1992,91–107; Strauss 2010, 7–31). We will bracket such issues here. Instead we will focuson three additional problems that new textualists confront. We shall argue that newtextualism:



— relies on normatively unattractive stipulative definitions of “interpretation”and “construction”;

— fails to solve the summing problem;— fails to solve the levels of generality problem.

Let us consider these points in turn.

4.1. The Interpretation-Construction Distinction

Francis Lieber, the brilliant German-born nineteenth century legal theorist, was thefirst to distinguish between legal “interpretation” and legal “construction.” (Priorto Lieber, the terms seem to have been used interchangeably.) For Lieber, thedistinction marked an important difference between the activity of ascertaining the“true sense” of a law, using only the text of the law (“interpretation”), fromreadings that, without relying on any extrinsic, non-textual sources, go beyond thetext to draw conclusions based on the “spirit” of the law (“construction”). Lieber(1880, 44–70) points to examples of unintended contradictions and unforeseen casesas instances where construction is necessary. For a century, Lieber’s distinction waswidely endorsed by authorities on legal interpretation, though sometimes withnotable differences.7

As noted above, it was Keith Whittington who, in the late 1990s, revived theinterpretation-construction distinction and made it a central topic of contemporaryconstitutional debate. For Whittington (1999, 7–8), construction is necessary whenconstitutional meaning “runs out.” Judges “interpret” constitutional language thathas clear, determinate meaning; they engage in “construction” when such meaningsare undiscoverable or substantially indeterminate. Whenever judges deal withdebatable applications of vague words or principles whose scope is indeterminate,they confront “gaps” and “hard cases with no right answer” (ibid., 224, n.20).8

When this occurs, they must resort to construction, which Whittington views asessentially a political activity rather than a legal one. Since judges have no legalauthority to make law by creating constitutional meanings, their constructions arenot fully authoritative and are only “contingently legitimate” (ibid., 158).

Whittington’s interpretation-construction distinction was quickly picked up byother constitutional theorists, particularly liberals, who saw it as the key to anattractive form of progressive originalism. Liberal theorists such as Balkin, Solum,

7 For instance, most scholars rejected Lieber’s implicit distinction between discovering a law’s“true” meaning and intent (interpretation) and supplying determinate or consistent meaningor intent when none actually existed (construction). Instead, both interpretation and con-struction were concerned with discovering meaning and intent, with construction coming intothe play only when the text was ambiguous or obscure. See, e.g., Black (1911, 1). Most scholarsalso commonly rejected Lieber’s view that both interpretation and construction should beconfined to the words of the law itself, with no resort to legislative history or other extrinsicaids permitted. Instead, it was said that resort to extrinsic aids was appropriate for construc-tion but not for interpretation. See, e.g., Crawford (1940, 241).8 Implicit in Whittington’s account is a positivist-inspired account of law and language, whichsees all law as “clear law.” Whenever judges encounter what Hart (2012, 12, 123) calls“penumbral” applications of vague words or general principles, “law” strictly speaking runsout and they must “make law,” rather than interpret it.



and Ryan adapted Whittington’s distinction and see it as a “seismic shift” (Solum2011b, 20) in originalist thought.

Solum has offered the most careful and detailed analysis of the interpretation-construction dyad. For Solum, the key elements of the distinction are these:

a) Interpretation is the activity that attempts to discover the “linguistic meaning”of a legal text (Solum 2011b, 3). The linguistic meaning is conventional usage,the sort of meaning that dictionaries try to capture.

b) Construction determines the legal effect of a legal text (ibid.).9 This can occur,for example, when a judge determines a borderline application of a vagueword, resolves gaps, contradictions, or contextually irresolvable ambiguitiesin a text, or constructs a legal doctrine that makes the semantic content of alaw clearer or easier to apply. Political officials and ordinary citizens can alsogive effect to legal texts (Solum 2010a, 103).

c) Construction occurs whenever effect is given to a legal text (even in easy caseswhere the law has a “plain meaning”). But construction becomes obviouswhen texts are vague. Whenever judges deal with borderline applications ofvague words, they cease to engage in interpretation and enter the “construc-tion zone” (Solum 2011b, 23).

d) New textualism, as such, is a theory of legal interpretation. New textualistsagree that the linguistic meaning of the Constitution is (defeasibly) binding.They disagree on the correct approach to constitutional construction (ibid.,25–6).

New textualists admit that their definitions of “interpretation” and “construction”are stipulative. As such, they cannot be either true or false (Hurley 1994, 88).They can, however, be helpful and appropriate. We shall argue that they areneither.

Solum admits that the term “interpretation” is used in a wide variety of senses.He notes, for example, that it can refer to activities aimed at recovering linguisticmeaning (“semantic interpretation”), the purpose(s) of a text (“teleological inter-pretation”), or the implications of a text (“implicative interpretation”) (Solum2010b, 561–2, 568, n.46). But he also thinks it is helpful to distinguish a narrowersense of “interpretation” that applies specifically to the process of discoveringlinguistic meaning. It is “interpretation” in this technical, stipulated sense thatSolum contrasts with “construction.” Why does he think the distinction is socrucial?

It is important, he argues, because it promotes conceptual clarity. Those who failto observe the distinction “are always in danger of conceptual confusion, categorymistakes, and invalid arguments” (Solum 2011b, 24). The distinction helps us tomark clearly the crucial distinction between understanding texts (grasping their

9 Solum waffles on the issue of whether interpretation is concerned solely with the discern-ment of linguistic meaning. He notes four “modifications” of his claim that original meaningis linguistic meaning: when (a) context is needed to disambiguate linguistic meaning, (b)terms of art are used, (c) new terms are coined (e.g., “House of Representatives” in theoriginal draft of the Constitution), and (d) implicatures exist, that is, when words say morethan they mean (Solum 2008, 4–5). Solum (2009, 70, n.204) admits that he has not made uphis mind whether the search for these sorts of meanings belong to “interpretation” or“construction.” We will treat them as objects of interpretation.



meanings) and using those texts to do various things (such as applying ordoctrinally elaborating them). The distinction also helps us avoid confusion aboutvarious legal debates in constitutional theory and statutory interpretation. Forinstance, it makes clear that originalism and living constitutionalism are notnecessarily opposed. Originalism is a theory of constitutional interpretation, not ofconstitutional construction. As such, it is consistent with at least some versions ofliving constitutionalism, which is primarily a theory of construction (Solum 2010a,117–8).

There is no doubt that something like Solum’s interpretation-construction dis-tinction is needed. Trying to figure out a text’s meaning is one thing; applying the textor doctrinally elaborating it are activities that are quite different.10 Nevertheless, webelieve that Solum’s particular way of framing the distinction is confusing andinappropriate.

The basic problem is that the term “interpretation” already has an establishedmeaning in legal discourse; that meaning is quite broad; and it is important thatthis broad usage be preserved. A brief retrospective will illustrate what we mean.

Back in the mid- to late-1970s, it was common for constitutional theorists todistinguish “interpretivist” from “non-interpretivist” approaches to constitutionaladjudication (Ely 1980, 1; Grey 1975, 703). Interpretivists (on this distinction)claimed that judges should truly interpret the Constitution by sticking close to itsactual words or according binding authority to the intentions of the framers.Non-interpretivists, by contrast, claimed that judges could engage in major recon-structive surgery on the Constitution—in effect “amending” it with little deferenceto the text or the framers’ intentions—in order to adapt it to changing values orcircumstances.

Thankfully, this distinction proved to be short-lived. It was quickly pointed outthat nobody seriously thought that judges could legitimately amend the Constitutionby engaging in “non-interpretive” review. Liberals and conservatives might dis-agree on how the Constitution should be interpreted. They did not disagree thatit should be interpreted and not, say, overridden by judicial fiat (Dworkin 1985,34–6).

What this episode teaches is the importance of preserving a broad sense oflegal “interpretation.” In constitutional discourse, “interpretation” is an honorific,something judges ought to be doing in deciding constitutional cases. Any judgeclaiming to engage in “non-interpretive” judicial review would be suspect, orworse. This is one reason why “interpretation” should not be used in a narrow,stipulated sense. Doing so implies that in constitutional cases judges may, andoften do, engage in something other than “interpretation.” Unavoidably, this isseen as dubious.

Moreover, it is important for all constitutional interlocutors to see themselves asengaged in a common enterprise: the task of trying to understand what theConstitution, rightly interpreted, “really” means and implies. Dworkin’s familiar

10 Indeed, applying a text’s meaning and elaborating it into a clearer or more-easily-implementable form are themselves quite different activities. (Compare: a baseball umpire’scalling a balk and a rules-committee writing rules to clarify when a balk occurs.) One problemwith Solum’s interpretation-construction distinction is that “construction” includes two verydisparate activities that should not be lumped together.



distinction between broad “concepts” and particular “conceptions” is useful in thiscontext (Dworkin 1977, 134–5). Consider the notion of social justice. As a generalproposition, it would be widely agreed that justice consists in giving people their“due,” that is, what they are entitled to or deserve. There is thus substantialagreement on the abstract nature of social justice, what Dworkin calls the “concept”of social justice. But there is wide disagreement between, say, utilitarians, libertar-ians, and Marxists, about what exactly people “deserve” in the distribution of socialgoods. These particularized theories are what Dworkin calls “conceptions” of socialjustice. The great value of the concept-conception distinction is that it allows allparticipants in a given debate to share in a common discussion, rather than simplytalking past one another, as would be the case if they were simply using words indifferent senses.

“Talking past one another” becomes a real concern on Solum’s way of framingthe interpretation-construction distinction. His use of narrow, stipulated definitionsis not likely to be widely accepted. Few will agree that “interpretation” is restricted,except for certain qualifications, to the discovery of semantic meaning. Thus, thereis a danger that the new textualists’ interpretation-construction distinction willcreate confusions and lead to the Balkanization (Balkinization?) of constitutionaldiscourse.

Solum (2011b, 24) is sensitive to these concerns and tries to disarm them byconceding that “it is not the terminology that is important.” Instead of speaking of“interpretation,” he points out, we could speak of “semantic construction” or“linguistic interpretation,” for example (ibid., 24). But if a proposed terminologyleads to confusions, conversational cross-purposes, and the appearance of trying togain an unfair theoretical advantage, then that wording is important.

A better approach, we suggest, would be to adopt a broad definition of “inter-pretation,” and then to distinguish a variety of discrete but related modes ofinterpretation. These might include “original semantic interpretation” (Solum’snarrow sense of “interpretation”), “application” (applying original or legal meaningto a particular case), and “doctrinal construction” (or “implementation”) (translat-ing legal meaning into elaborated legal doctrine). Such categorizations wouldenable new textualists to draw attention to their salient distinctions withoutcreating the problems we noted.

4.2. The Summing Problem

The summing problem—sometimes called the collective intentions problem—is theproblem of how to discover, or to construct, a single, coherent collective “meaning”or “intent” in cases where there were many lawmakers who apparently had differ-ent and even conflicting views of the meaning, purposes, or legal effects of the lawthey enacted (Bassham 1992, 83–8; Solum 2009, 43–50; Whittington 1999, 192–5).As we have seen, new textualists frequently claim that their version of originalismsolves, or at least significantly mitigates, this problem (Solum 2011a, 160–2). Weshall argue that it does not.

How does textualism supposedly solve the summing problem? By shifting thefocus from the real or hypothetical mental states of actual lawmakers to somethingnon-mental: systematic regularities of usage, grammar, and syntax in particularlinguistic communities. Roughly, you replace historical research into the original



intentions or understandings of, say, James Madison, with a glance at standarddictionary definitions at the time of enactment. Dictionaries, of course, will notresolve all issues of original meaning; ambiguities will remain. But these, it isclaimed, can nearly always be settled by appeals to context (Solum 2011a, 144). Andvoilà! The dreaded summing problem is solved.

Thoughtful new textualists are quick to acknowledge that things are not quite sosimple. Resort to actual mental states may be helpful or unavoidable to ascertaindeterminate or appropriate original meanings in cases of possible terms of art(“Letters of Marque and Reprisal”) (Scalia and Garner 2012, 73; Solum 2009, 56–8),scrivener’s errors or slips of expression that lead to absurdity (Scalia and Garner2012, 20–1), inaccurate dictionary definitions,11 cases of “implicature” (where theConstitution means things it does not explicitly say) (Solum 2008, 12), possiblecases of “secret” semantic intentions,12 and cases where context fails to resolve allambiguity (Solum 2009, 74). These exceptions clearly open the door to potentialsumming problems. But the difficulties, in fact, are much more severe than theselimited exceptions suggest.

The Constitution includes many provisions that cannot be understood merely byappeal to original conventional meaning in context. This is perhaps most obviousin cases where the language cannot sensibly be read as literally as the wordssuggest. A few examples:

— Article III, Section 2 provides that in federal law “[t]he trial of all crimes,except in cases of impeachment, shall be by jury.” As Amar (2005, 234) notes,this provision was intended to track the uniform rule in the States that allserious crimes be tried by juries. Despite the seemingly absolute “all” and“shall,” courts have reasonably held that the provision does not precludevoluntary waiver of a jury trial, nor guarantee juries for petty, juvenile, ormilitary crimes, or for criminal contempt charges (Bassham 1992, 26).

— Article I, Section 7 provides that “[e]very order, resolution, or vote to whichthe concurrence of the Senate and House of Representatives may be necessary(except on a question of adjournment) shall be presented to the Presidentof the United States” for approval or veto. Here the seemingly absolute“every” appears to imply that not only bills, but preliminary congressionalvotes, minor procedural votes, nonbinding resolutions, and the like, must besubmitted for presidential approval. Such a literal reading is obviouslyproblematic and has never been followed (Corwin 1973, 31–2).13

11 Consider the dispute, for example, between Raoul Berger and William Crosskey aboutwhether the phrase “in pursuance thereof” in Article VI originally meant “in consequence of”(as Samuel Johnson’s famous dictionary reported) or “consistent with” (as Berger’s historicalresearch suggested). See generally Levy (1988, 110).12 See, e.g., Solum (2009, 108) (discussing Howard Jay Graham’s claim that the framers of theFourteenth Amendment “conspired” to include corporations as “persons,” and noting that insuch cases the semantic content of laws would not be the original public meaning).13 As Bennett (2011, 172) notes, a literal reading of the Article I presentment clause seems torequire that proposed constitutional amendments also be presented for the President’sapproval or veto. Yet this conflicts with the Article V language on amendment procedures.Likewise, a literal reading of various constitutional clauses, taken together, seems to implythat the Vice President should preside over his own impeachment trial in the Senate.



— Article I, Section 10 states: “No state shall, without the consent of Congress,[. . .] enter into any agreement or compact with another state.” As Balkin(2011, 349–50, n.12) notes, this provision—despite its plain words—was notintended to proscribe very minor interstate contracts (e.g., for purchases ofcotton candy for a joint state fair), or any agreement that in no way threatensfederal power or supremacy.

— Article IV, Section 2 provides that “[t]he citizens of each State shall be entitledto all privileges and immunities of citizens in the several states.” Readliterally, this seems to prohibit all preferential treatment, however reasonableor minor, by a state of its own citizens over citizens of other states.14 Such areading would bar, for example, residency requirements for state benefits orlower tuition rates for state residents at public universities. This, too, is anexample of constitutional language where a literal reading clearly was notintended and has never been adopted (Corwin 1973, 208–9).15

In cases such as these, the Constitution’s original public meaning cannot beequated with its contextualized sentence meaning.16 Neither dictionaries norcontext will provide a sensible, determinate meaning for the relevant texts.Instead, it is necessary to attempt to ascertain what legal principles or propositionsthe American people understood such texts to enact. The words express a thought,a norm expressible as a proposition. But what was the norm? The words expressit imperfectly, so it is necessary to go behind the words to recover the thought. Butwhat if there was no shared thought? What if a third of the American peoplethought the provision expresses proposition A, another third thought it expressesproposition B, and the remaining third thought it expresses proposition C?17

Then we have a summing problem that appeal to original public meaning willnot solve.

Many new textualists suggest that we can avoid this problem by constructinga fictional person—an informed, reasonable reader—who by hypothesis willadopt a single, coherent reading of the relevant text and correctly identify therelevant legal proposition (Kesavan and Paulsen 2003, 1142–7; Scalia and Garner

14 Or alternatively, that Congress cannot treat citizens of some states more favorably thanothers. It is unclear whether the clause is directed at Congress, the states, or both (Corwin1973, 208).15 Amar (2012) puts the point even more strongly. “On occasion,” he says, “the Constitution’strue meaning is very nearly the opposite of what the applicable clause seems to say quiteexpressly” (ibid., 47). If so, this poses a challenge for all forms of originalist textualism. If aso-called “textualist” admits that the text means the opposite of what it conventionally “says,”hasn’t textualism been abandoned?16 This is also true when the Constitution employs synecdoches—figures of speech in whicha part stands for the whole, or the whole for a part. For instance, in the copyright clause,“writings” presumably includes maps, drawings, and other things that are not literallywritings.17 This assumes, absurdly, that every reader consciously gave the words a specific “clarifyinginterpretation.” As the legal realists noted long ago, any serious attempt to reconstructactual mental states would find a blooming, buzzing confusion—and presumably lots of“null” responses, where readers had nothing that we could dignify as a “thought.” Hence themove by new textualists to construct a kind of robo-reader who always performs toexpectations.



2012, 17).18 The notion of such an “objectivized” intent is clearly modeled on the“reasonable person” standard in other areas of the law, such as the doctrine of duecare in tort law and the criminal negligence standard in criminal law. There is animportant difference, however, between these two sorts of legal constructs. Whenit is a question of conduct, it makes sense to ask how a typical reasonable personmight behave in a particular situation. However, when we are asking whatproposition an “informed, reasonable reader” would have understood a certainstring of words to express, no clear answer may emerge. Equally informed andequally reasonable readers may have understood the words very differently.19 Theremay be no way of combining these disparate interpretations into a single, coherentpropositional form. For these reasons, the summing problem remains a seriousissue, even for new textualists.20

4.3. The-Levels-of-Generality-Problem

The so-called levels-of-generality problem has long been a standard objection tooriginalism (Dworkin 1985, 48–51). The problem is this: Often it is possible toread constitutional language broadly (as enacting broad concepts or abstractprinciples) or more narrowly (as laying down relatively clear and specific rules).For example, some scholars have argued that the Fourteenth Amendment’s EqualProtection Clause was intended as a broad guarantee of equal fundamentalrights (Amar 2012, 109–10; Balkin 2011, 220–6; Curtis 1986, 117–20), while othersread it much more narrowly as applying only to a set of civil rights specificallyenumerated in the Civil Rights Act of 1866 (Berger 1977, 169–76). Sometimes thecontext or historical investigation makes clear which reading the adoptersintended, but this is not always the case. Even after all the tools in the originalisttoolkit have been applied, it may be unclear what level of generality or speci-ficity reflects the original meaning, intent, or understanding. The levels-of-generality problem is the issue of how to choose an appropriate level of

18 One leading new textualist, Solum (2011b, 3), opts for “ordinary,” English-fluent Americancitizens, with no requirement that they be “informed” or “reasonable.”19 The First Amendment Free Speech Clause is a case in point. There was considerablecontroversy in, and immediately after, the founding era about how the provision should beinterpreted. Madison, for example, regarded it as an absolute prohibition of any congressionalregulation of speech. John Marshall, on the other hand, understood it as enacting the tradi-tional common-law definition of “freedom of speech,” which prohibited government frominstituting any system of licensing or prior restraint, but did not bar subsequent prosecutionfor speech considered harmful or dangerous (Amar 2012, 167–9).20 Ekins (2012, 218–43) has recently argued that “well-formed” legislatures would shareactual—not merely constructed—group intentions of two sorts. They would share both a“standing intention” to legislate as and when required for the common good and a “particularintention” to enact a specific coherent, reasoned piece of legislation, should a majority oflegislators support it. A legislature’s particular intention is a detailed statutory plan thatconsists of “a complex set of meanings that expresses a complex set of propositions” (ibid.,220). The obvious difficulty with this purported solution is that it is no solution at all. At best,it shows only that legislative intent can exist under ideal conditions. It does nothing toaddress the all-too-common cases in which there was no actual agreement on the particularmeanings of statutory language.



abstractness21 or generality when the available originalist resources do not dictatea clear answer.

A standard objection to originalism is that in such cases originalists tend tochoose levels of generality that are arbitrary, inconsistent with their own originalistpremises, or normatively unattractive (Brest 1980, 216–7; Dworkin 1996, 290–301).As we have seen, one of the alleged attractions of new textualism is that iteffectively side-steps this objection.

But does it? According to Solum, there is no levels-of-generality problem for newtextualist theories, for the simple reason that such theories accord binding authorityonly to the linguistic meanings of constitutional texts. Constitutional words andphrases have built-in levels of generality in virtue of shared linguistic practices. Forexample, the word “state” is a more general word than the term “Delaware.” Thus,to determine the appropriate level of generality of a constitutional provision onesimply needs to consult conventional word-usage, supplemented by context toresolve cases of ambiguity (Solum 2011a, 148–50).

From what we said earlier about the summing problem, it should be clear whythis is not an adequate response. Many constitutional provisions cannot be readliterally. To get at their true public original meaning, we need to determine the legalprinciple they were generally understood to enact. But the adopters may not haveshared the same understandings. Some might have favored broader readings, somenarrower. Simply appealing to contextualized linguistic meanings will not do thetrick.

In his important recent book, Living Originalism, Balkin offers another way ofaddressing the levels of generality objection. Balkin argues that the Constitutionintentionally includes three different sorts of legal norms: rules, standards, andprinciples. Rules are clear, specific legal commands that require little or no practicalor evaluative judgment to apply (e.g., the rule that Senators must be at least thirtyyears old). Standards employ vague concepts that have borderline applications,require judgment to apply, and effectively delegate later generations with the taskof making their concrete meanings more precise. Examples of standards include theFourth Amendment prohibition of “unreasonable” searches and seizures and theEighth Amendment ban on “excessive” bail. Principles are abstract, defeasiblenorms that are usually indeterminate in reach and must be balanced against otherconsiderations. Like standards, principles require contestable practical and evalu-ative judgments to apply and delegate these applications to future generations.Examples of constitutional principles include the Free Speech Clause, the FreeExercise Clause, and the Equal Protection Clause. In addition to rules, standards,and principles, which are explicit textual norms, the Constitution contains whatBalkin calls “underlying principles.” These are nontextual “aids or heuristics thathelp explain or flesh out” (Balkin 2011, 260) the meanings of constitutionalprovisions. Normally, underlying principles are found in the explanations of the

21 In the legal literature, the terms “abstract” and “general” are often used interchangeably.In fact, they are different, but related, notions. Generality refers to the scope of a concept orproposition—roughly, how much it includes (e.g., whether it includes all dogs or merelysome). Abstractness refers to the degree of definiteness or specificity of a concept or proposition.Thus, the generic concept of a human being (neither male nor female, tall nor short) is moreabstract than a specific mental image of a tall, Norwegian male.



framers and adopters of constitutional texts and provide important clues as to whatstandards and principles those texts were understood to enact (ibid., 265–6).However, some underlying principles (e.g., unsuspected structural implications)may never have been explicitly formulated or even recognized by the adopters.Because underlying principles are not found in the text, they are “constructions”rather than “interpretations.” In other words, they are not part of the “meaning” ofconstitutional texts, but tentative and revisable aids in the application of constitu-tional norms. Examples of underlying principles include prohibitions of class andcaste legislation that, according to Balkin (ibid., 231–7), help explain and concretizethe Constitution’s guarantee of equal protection of the laws.

How do these distinctions solve, or at least mitigate, the levels of generalityobjection? Balkin’s point is that a constitutional text’s level of generality is notsomething interpreters choose: it is dictated by the text. What the Constitution’sadopters debated, voted on, and enacted were words, not subjective intentions;and the words themselves indicate whether the relevant norms should beregarded as rules, standards, or principles. In addition, Balkin argues, the adop-ters knew what they were doing. They knew how to write clear, explicit ruleswhen they wanted to. They also knew the limits of their own wisdom andforesight, and knew that constitutions, if they are to endure, must “channel anddiscipline future political judgment, not forestall it” (ibid., 29; emphasis omitted).Absent strong evidence to the contrary, therefore, the adopters’ choice of broad,flexible language indicates that their “semantic intentions” were to enact broadconcepts and abstract principles that were capable of growth, specification, andadaptation (ibid., 263). On this view, both the “meanings” of the Constitution’sbroad guarantees and the “underlying principles” that help flesh out those mean-ings must be at least as capacious as the language itself. Thus, “[t]he proper levelof generality for the constitutional principles in the text is the one we find in thetext itself” (ibid., 263). Roughly, if a constitutional text quacks like a principle,then it is a principle.

Balkin’s core argument here is not new. Though expressed with unusual clarityand elegance, much of it is a restatement of arguments borrowed from Dworkinand the “living constitutionalism” of the early twentieth century legal progressives(Cardozo 1921, 17; Dworkin 1996, 268–72). His central argument is that we shouldread the Constitution’s great generalities as abstract principles that substantiallydelegate the task of application to future generations because (1) the words of theConstitution are binding, and the words are vague and general, and (2) theadopters were smart guys who deliberately chose vague, abstract language becausethey wanted to create a Constitution that was adaptable, provided a broadframework of basic and higher law, and would serve as an aspirational lodestonefor generations of Americans. The problem is that neither of these arguments isvery strong.

Consider, first, the claim that the words are binding (or have “primacy”) becauseonly the words were debated, voted on, and enacted into law. We have seen thatthere are many constitutional provisions that are not interpreted literally, where thewords are not treated as binding. At best, then, the words are presumptivelybinding. But even this significantly overstates the role of the text in the Americanconstitutional tradition. As Brest (1980, 234) notes, appeals to the constitutional textand original intent have “played a very small role compared to the elaboration of



the Court’s own precedents. It is rather like having a remote ancestor who cameover on the Mayflower.”22 In the vast majority of constitutional cases, judges beginwith a vague hand-wave towards the text, and then get on with the seriousbusiness of interpreting, applying, and elaborating the Supreme Court’s increas-ingly byzantine doctrinal superstructure. Any argument that the constitutional textis “binding” must take due note of this 500-lb gorilla in the room.

Balkin’s claim that the adopters must have intended to constitutionalize abstractprinciples because they deliberately chose broad language and were smartconstitution-makers has both strengths and weaknesses. Its great strength (from aliberal perspective) is its irrefutability. It is an unsinkable rubber duck that noamount of historical evidence can decisively disprove. No matter how muchevidence is amassed that the framers and ratifiers favored narrow understandingsof constitutional language, this can be swept aside as inconclusive. After all, it isthe original public meaning that is binding, not the personal opinions of the framersand ratifiers. Moreover, these narrower readings usually are evidence only of theframers’ or ratifiers’ “expected applications,” not their “semantic intentions.”According to Balkin, it is only the latter that is relevant to original constitutionalmeaning.

The reality, however, is that the historical case for the adopters’ abstract inten-tions is quite shaky. Counting heavily against Balkin’s view are the well-documented facts that (1) the founding generation was generally suspicious ofjudicial discretion and policymaking (Berger 1977, 300–11; Manning 2001, 1);23 (2)lawmakers in the founding era often used broad, general language, knowing thatthe words would be understood “reasonably” and relatively narrowly (a long-recognized interpretive technique known as “restrictive equitable interpretation”)(Bassham 1992, 2–4); (3) examination of the “expected applications” of constitu-tional language frequently suggests that the original public meaning was morespecific than the words alone would indicate; and (4) there are virtually no explicitdeclarations among the adopters or later constitutional commentators (such asWilliam Rawle, Joseph Story, or Thomas Cooley) that the meaning of constitutionallanguage was as abstract and open-ended as Balkin claims. Compounding theseproblems are doubts about whether the founding generation could have even madesense of the modern distinction between “abstract” and “concrete” “semantic”intentions, and how likely it is that substantial numbers of Americans in thefounding era would have favored a “delegational” model of constitutional

22 In light of the de facto primacy of precedent in constitutional adjudication, as well as otherfactors that tend to steer judges away from original public meaning (e.g., certain traditionalcanons of construction and principles of judicial deference to the political branches), it mightbe preferable to say, as Berman (2010, 47–50) does, that the true target of constitutionalmeaning is “legal meaning,” not “semantic meaning.”23 Often cited in opposition to Manning is Eskridge (2001, 990). Eskridge notes, correctly,that the founders recognized the legitimacy of traditional equitable interpretation. However,this does not imply an embrace of significant judicial discretion. Generally speaking, thepurpose of equitable interpretation was not to displace lawmakers’ intent, but to furtherit in cases where the “letter” of the law was presumed to conflict with the lawmakers’actual or counterfactual intent. The goal of equitable interpretation, as Aristotle said, was“to say what the legislator himself would have said had he been present” (Aristotle 1925,1137b).



interpretation. For all of these reasons, it is dubious that new textualists havesolved, or even significantly ameliorated, the levels-of-generality problem.

5. Conclusion

In this article, we have sought to do four things: to explain new textualism as aconstitutional theory, to sketch how it arose, to note its real and apparent attrac-tions, and to explore what we see as unresolved (and perhaps unresolvable)problems. The three major problems we have highlighted are (a) the inappropri-ateness of the new textualists’ proposed interpretation-construction distinction, (b)the failure of new textualism to solve the summing problem, and (c) the inabilityof new textualism to solve the levels-of-generality problem. These are problems thatface all versions of new textualism, both conservative and liberal. Conservatives, ofcourse, object strongly to progressive strands of new textualism, claiming that theydo not adequately constrain activist judges. Progressives argue that conservativeforms of new textualism suffer from the opposite problem: They freeze narrowreadings in place and leave judges too little flexibility to adapt the Constitution’sprinciples to changing values and circumstances. On this fraternal liberal-conservative split, we take no sides here. Our aim has been to clarify newtextualism as a general approach to constitutional theory and to point to a numberof important unresolved problems.24

Gregory BasshamKing’s College (Pennsylvania)

E-mail: [email protected]

Ian OakleyDrexel University School of Law

2718 Plymouth Dr.Easton, PA 18045

E-mail: [email protected]

References

Amar, A. R. 2005. Rethinking Originalism: Original Intent for Liberals (and forConservatives and Moderates, Too). Slate, September 21. Available at http://www.slate.com/articles/news_and_politics/jurisprudence/2005/09/rethinking_originalism.html.

Amar, A. R. 2012. America’s Unwritten Constitution: The Precedents and Principles WeLive by. New York, NY: Basic Books.

Antieau, C. J. 1982. Constitutional Construction. New York, NY: Oceana.Aristotle. 1925. Nichomachean Ethics. Ed. Transl. W. D. Ross. Oxford: Clarendon.Arthur, J. A. 1989. The Unfinished Constitution: Philosophy and Constitutional Practice.

Belmont, CA: Wadsworth.Balkin, J. M. 2011. Living Originalism. Cambridge, MA: Harvard University Press.

24 Our thanks to Mitch Berman, James E. Ryan, and Bernard Prusak for generous andinstructive comments on previous drafts of this article.



mailto:[email protected]

mailto:[email protected]

http://www.slate.com/articles/news_and_politics/jurisprudence/2005/09/rethinking_originalism.html



Barnett, R. E. 1999. An Originalism for Nonoriginalists. Loyola Law Review 54:611–54.

Barnett, R. E. 2004. Restoring the Lost Constitution: The Presumption of Liberty.Princeton, NJ: Princeton University Press.

Barnett, R. E. 2011. Interpretation and Construction. Harvard Journal of Law & PublicPolicy 34: 65–72.

Bassham, G. 1992. Original Intent: A Philosophical Study. Lanham, MD: Rowman andLittlefield.

Bennett, R. W. 2011. Are We All Living Constitutionalists Now? In R. W. Bennettand L. B. Solum, Constitutional Originalism: A Debate, 165–80. Ithaca, NY: CornellUniversity Press.

Berger, R. 1977. Government by Judiciary: The Transformation of the Fourteenth Amend-ment. Cambridge, MA: Harvard University Press.

Berman, M. N. 2009. Originalism Is Bunk. New York University Law Review 84: 1–96.Berman, M. N. 2010. Constitutional Constructions and Constitutional Decision

Rules: Thoughts on the Carving of Implementation Space. Constitutional Com-mentary 27: 39–69.

Black, H. C. 1911. Handbook of the Construction and Interpretation of the Laws. St. Paul,MN: West.

Bork, R. H. 1990. The Tempting of America: The Political Seduction of the Law. NewYork, NY: The Free Press.

Brennan, W. J. 1986. The Constitution of the United States: Contemporary Ratifi-cation. South Texas Law Review 27: 433–45.

Brest, P. 1980. The Misconceived Quest for the Original Understanding. BostonUniversity Law Review 60: 204–38.

Breyer, S. 2005. Active Liberty: Interpreting Our Democratic Constitution. New York,NY: Knopf.

Calabresi, S. G., ed. 2007. Originalism: A Quarter-Century of Debate. Washington,D.C.: Regnery.

Cardozo, B. 1921. The Nature of the Judicial Process. New Haven, CT: Yale UniversityPress.

Chemerinsky, E. 1987. Interpreting the Constitution. New York, NY: Praeger.Corwin, E. S. 1973. The Constitution and What It Means Today. Princeton, NJ:

Princeton University Press.Crawford, E. T. 1940. The Construction of Statutes. St. Louis, MO: The Thomas Law

Book Co.Curtis, M. K. 1986. No State Shall Abridge: The Fourteenth Amendment and the Bill of

Rights. Durham, NC: Duke University Press.Devlin, P. 1965. The Enforcement of Morals. New York, NY: Oxford University Press.Dworkin, R. 1977. Taking Rights Seriously. Cambridge, MA: Harvard University

Press.Dworkin, R. 1985. A Matter of Principle. Cambridge, MA: Harvard University Press.Dworkin, R. 1996. Freedom’s Law: The Moral Reading of the American Constitution.

Cambridge, MA: Harvard University Press.Easterbrook, F. H. 1983. Statutes’ Domains. University of Chicago Law Review 50:

533–52.Ekins, R. 2012. The Nature of Legislative Intent. Oxford: Oxford University Press.Ely, J. H. 1980. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA:

Harvard University Press.Eskridge, W. N. 2001. All about Words: Early Understandings of the “Judicial

Power” in Statutory Interpretation, 1776–1806. Columbia Law Review 101: 990–1106.



Fish, S. 2008. Intention Is All There Is: A Critical Analysis of Aharon Barak’sPurposive Interpretation in Law. Cardozo Law Review 29: 1109–46.

Goldford, D. J. 2005. The American Constitution and the Debate over Originalism. NewYork, NY: Cambridge University Press.

Grey, T. C. 1975. Do We Have an Unwritten Constitution? Stanford Law Review 27:703–18.

Hart, H. L. A. 2012. The Concept of Law. Oxford: Clarendon Press. (1st ed.1961.)

Hurley, P. J. 1994. A Concise Introduction to Logic. Belmont, CA: Wadsworth.Jones, H. W. 1939. The Plain Meaning Rule and Extrinsic Aids in the Interpretation

of Federal Statutes. Washington University Law Quarterly 25: 2–26.Kesavan, V., and M. S. Paulsen. 2003. The Interpretive Force of the Constitution’s

Secret Drafting History. Georgetown Law Journal 91: 1113–214.Knapp, S., and W. B. Michaels. 1982. Against Theory. Critical Inquiry 8: 723–42.Levy, L. W. 1988. Original Intent and the Framers’ Constitution. New York, NY:

Macmillan.Lieber, F. 1880. Legal and Political Hermeneutics. St. Louis, MO: F. H. Thomas & Co.Manning, J. F. 2001. Textualism and the Equity of the Statute. Columbia Law Review

101: 1–127.Martin, R. M. 1987. The Meaning of Language. Cambridge, MA: MIT Press.McGinnis, J. O. and M. B. Rappaport. 2009. Original Methods Originalism: A New

Theory of Interpretation and the Case against Construction. Northwestern Uni-versity Law Review 103: 751–802.

Moore, M. S. 1981. The Semantics of Judging. Southern California Law Review. 54:151–294.

Perry, M. S. 1991. The Legitimacy of Particular Conceptions of ConstitutionalInterpretation. Virginia Law Review 77: 669–719.

Perry, M. S. 1994. The Constitution in the Courts: Law or Politics? New York, NY:Oxford University Press.

Reynolds, W. L. 1980. Judicial Process. St. Paul, MN: West.Ryan, J. E. 2011. Laying Claim to the Constitution: The Promise of New Textualism.

Virginia Law Review 97: 1523–72.Scalia, A. 1987. Address before the Attorney General’s Conference on Economic

Liberties. In Office of Legal Policy, U. S. Department of Justice, Original MeaningJurisprudence: A Sourcebook. Washington, D.C.: The Office, U.S. Dept. ofJustice.

Scalia, A. 1997. A Matter of Interpretation: Federal Courts and the Law. Princeton, NJ:Princeton University Press.

Scalia, A. and B. A. Garner. 2012. Reading Law: The Interpretation of Legal Texts. St.Paul, MN: West.

Solum, L. B. 2008. A Reader’s Guide to Semantic Originalism and a Reply toProfessor Griffin. Illinois Public Law and Legal Theory Research Papers 8–12.Available at SSRN http://papers.ssrn.com/abstract=1130665.

Solum, L. B. 2009. Semantic Originalism (draft). Available at http://philpapers.org/archive/SOLSO.

Solum, L. B. 2010a. The Interpretation-Construction Distinction. Constitutional Com-mentary 27: 95–118.

Solum, L. B. 2010b. The Unity of Interpretation. Boston University Law Review 90:551–78.

Solum, L. B. 2011a. Living with Originalism. In R. W. Bennett and L. B. Solum,Constitutional Originalism: A Debate, 143–64. Ithaca, NY: Cornell UniversityPress.



http://papers.ssrn.com/abstract=1130665

http://philpapers.org/archive/SOLSO

http://philpapers.org/archive/SOLSO

Solum, L. B. 2011b. We Are All Originalists Now. In R. W. Bennett and L. B. Solum,Constitutional Originalism: A Debate, 1–77. Ithaca, NY: Cornell UniversityPress.

Strauss, D. A. 2010. The Living Constitution. New York, NY: Oxford UniversityPress.

Tribe, L. H. 1997. Comment. In A. Scalia, A Matter of Interpretation: Federal Courtsand the Law. Ed. A. Gutmann, 65–94. Princeton, NJ: Princeton UniversityPress.

Whittington, K. E. 1999. Constitutional Interpretation: Textual Meaning, Original Intent,and Judicial Review. Lawrence, KS: Kansas University Press.

Whittington, K. E. 2004. The New Originalism. Georgetown Journal of Law and PublicPolicy 2: 599–609.



New Textualism: The Potholes Ahead

Documents

Transcript of New Textualism: The Potholes Ahead