Textualism denotes the opinion that whenever possible, judges resolving questions of constitutional law should rely primarily on the language of the Constitution itself. The text should guide decision and the text itself, rather than other considerations such as original intent, ratifier intent, history, principles inferred from the text, altered circumstances, judicial readings of societal values, or even judicial precedents. Justice owen j. roberts, for the Court in united states v. butler (1936), manifested an allegiance to textualism when he declared that the constitutionality of a contested statute should be squared against the appropriate language of the text to see if they match.
This view of the best way to determine constitutionality was the most prevalent one at the time of the making of the Constitution. thomas jefferson and alexander hamilton differed on the question as to whether an act of Congress incorporating a bank was constitutional; but, as Hamilton said, Jefferson would agree "that whatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual established rules of construction." Hamilton accurately stated the truth of the matter to the founding generation.
Despite near unanimity on the propriety of interpreting the Constitution according to established rules of construction, the Framers arrived at contradictory results when applying those rules to numerous important constitutional issues. Their belief in textualism did not prevent them from dividing on the removal power, the power to charter a corporation, the power to declare neutrality, the scope of executive powers, the power to enact excise and use taxes without apportioning them on population, the power of a treaty to obligate the House to appropriate money, the power of judicial review, the power to deport aliens, the power to pass an act against seditious libel, the power to abolish judicial offices of life tenure, and the jurisdiction of the Supreme Court to decide suits against states without their consent or to issue writs of mandamus against executive officers.
Rules of constitutional construction by which to construe the text are comparable to those of statutory construction, which a current federal judge, Frank Easterbrook, called "a total jumble." For every rule, as Karl Llewellyn demonstrated in his Common Law Tradition, "there is an equal and opposite rule." A master commentator, Justice joseph story, discoursed on the rules of construction for some sixty pages in his Commentaries on the Constitution, yet he failed completely to convince his Jacksonian colleagues on the bench. Rules of construction in effect free, rather than fetter, judicial discretion. The fact remains, however, that textualism should be the bedrock of judicial review; as Story said, "Nothing but the text itself was adopted by the whole people." Whenever the fair or plain meaning of the Constitution can be ascertained, it should guide judgment.
The problem is that the Constitution is a brief elliptical document framed by common lawyers trained to believe that a few comprehensive and expansive principles supplementing a structural description will be infinitely adaptable and will provide guides that can serve to answer virtually any question that might arise on a case-to-case basis. In some crucial respects, the Constitution resembles Martin Chuzzlewit's grandnephew, who, Dickens said, "had no more than the first idea and sketchy notion of a face." The Framers had a genius for studied imprecision and calculated ambiguity. They relied on many general terms because common lawyers expressed themselves that way out of conviction and because politics required compromise, and compromise required ambiguity and vagueness.
The text, even with twenty-six amendments that have been added in two centuries, is scarcely 7,000 words long, and only about two percent of the verbiage possesses any significance in constitutional law. Almost without exception, these are the purposefully or unavoidably general terms: commerce among the states, obligation of contracts, necessary and proper, bills of credit, republican form of government, due process of law, privileges and immunities, direct taxes, general welfare, liberty, unreasonable searches, equal protection, and the like.
For the most part, the constitutional convention of 1787 designed the Constitution with the utmost diligence and attention to detail. The Convention usually chose words with craft and craftsmanship. This is the reason that constitutional law does not involve the bulk of the Constitution. It does not have to be litigated because it is clear and understandable. Consequently, the vagueness and ambiguities found in the Constitution were probably deliberate. In the federalist #37, james madison replied to the Anti-Federalist criticism that the Constitution's lack of clarity on some matters threatened the states and liberty. Obscure and equivocal language was inevitable, he contended, but its meaning would be clarified in time by adjudications. abraham baldwin of Georgia, another Framer, declared that some subjects were left "a little ambiguous and uncertain" for political reasons and would be settled in time by practice or by amendments. Some textual language remained open-ended to avoid giving offense by explicitness. Treaty powers, judicial powers, and rival powers of legislation fell into these categories, according to Baldwin.
Ambiguity and vagueness arise in the nonstructural sections. Ambiguous words permit different understandings; vague words do not allow for much understanding. The exceptions clause of Article III is a good example of ambiguity. It might mean that Congress may switch appellate jurisdiction to original jurisdiction, thereby adding to the Supreme Court's original jurisdiction, as counsel in marbury v. madison (1803) argued, or it might mean that the original jurisdiction of the Court is fixed, as john marshall held. If the exceptions clause means that Congress may make exceptions to the Court's jurisdiction by diminishing its appellate jurisdiction, how far can Congress go? And how can the Court exercise the jurisdiction specified in Article III as belonging to the judicial power of the united states if it is dependent on Congress's will?
The text of Article I, section 8, poses problems too. Congress may pass no capitation or "other direct tax" unless apportioned among the states on the basis of population. Although the Framers probably regarded direct taxes as only taxes imposed on people per capita and on land, they did not say so. They left "other direct taxes" open to interpretation. Article I, section 8, on the tax power is all the more puzzling because it is not known whether the tax power connotes an equally expansive power to spend, and the meaning of the "general welfare" is equally mystifying. Constitutional government as the Framers understood it cannot survive a national power to legislate for the general welfare, nor can the federal system survive a national power authorized to spend for the general welfare, yet the text gives credibility to these views.
The term "in pursuance of" in Article VI (the supremacy clause) is also ambiguous. Usually this term is taken to mean that in order for acts of Congress to be constitutional, they must be consistent with the Constitution. The "in pursuance of" clause is a mainstay of the argument that the Supreme Court may exercise judicial review over acts of Congress. Yet at the time of the framing, the text of the articles of confederation showed that "in pursuance of" meant "under authority of" or "done in prosecution of."
The executive power with which the President is endowed is ambiguous too. It is not known what is meant by the executive power, apart from an obligation to execute the laws faithfully. Moreover, the text indicates that the President can call on the armed forces to suppress rebellions or repel attacks, but not whether he can engage in military hostilities without either congressional support or a congressional declaration of war. In the case of executive agreements, there is not even a vague provision of the Constitution to construe. Nothing in the document authorizes treaty-making by the President without the advice and consent of the Senate. Nothing in the document authorizes the Congress to empower the President to make international agreements that have the force of the supreme law of the land or authorizes such agreements to have this force when both branches of Congress retroactively or subsequently approve of an international agreement made by the President on the President's own initiative. Nevertheless, Presidents have been making executive agreements with foreign nations throughout U.S. history and on major matters, without successful constitutional challenge. Moreover, the text of the Constitution does not provide for the device of the joint congressional resultion. By this device, Congress has considerably augmented its powers in foreign affairs, as when it annexed Texas and then Hawaii to circumvent the requirement of a two-thirds vote of the Senate to approve treaties.
Three major provisions of the Constitution are among the vaguest: Congress has the power to regulate commerce among the states; neither the national government nor a state may take life, liberty, or property without due process of law; and no state may deny to any person the equal protection of the laws. These are the most litigated clauses in U.S. constitutional history because they are among the muddiest and most important.
Even the seemingly specific injunctions and provisions of the bill of rights are vague or ambiguous, offering little guidance for interpretation. A good example of such ambiguity is the term establishment of religion in the first amendment. James Madison, its author, mistakenly used the term interchangeably with "religious establishment," which denotes an institution of religion such as a church or sectarian school. "Religious establishment" carries no implication of government aid to religion or government involvement with it, as does "establishment of religion." When Madison misquoted the clause as if it outlawed religious establishment, he meant that the government had no authority to legislate on religion or its institutions. Nevertheless, the term itself has no self-evident meaning. History supplies that meaning, and historians differ.
The term freedom of the press constitutes another ambiguity. In Anglo-American thought and law, it meant an exemption from prior restraint; it did not exclude liability under the criminal law for seditious, obscene, or blasphemous libel. In contrast, the Framers, who did not adopt or reject the definition of a free press under the common law, knew only a rasping, corrosive, and licentious press. They did not likely use the term "freedom of the press" without intending to protect the freedom that in fact existed and that they knew. The text itself surely lacks clarity. It declares in absolute terms that Congress shall make no law abridging the freedom of speech or press, but the copyright clause of the Constitution authorizes Congress to make laws that do abridge the freedom of speech and press of those who would infringe copyrights.
This same clause, in Article I, section 8, refers only to "authors and inventors," making a literal interpretation of it fail to protect artists, sculptors, composers, computer-software designers, television programmers, and many others who come under its protection. If only authors and inventors benefited from the clause, they could not even assign a copyright to others. The problem with the copyright clause is not that it is ambiguous or vague; it is utterly clear. But, it possesses inappropriate specificity and therefore cannot mean what it says.
The First Amendment exhibits the same problem. Assuming that its framers chose their language carefully, the fact that they failed to give adequate protection to the free exercise of religion must be confronted. The text declares that the freedom of the press may not be abridged, but by contrast, only says that freedom of religion may not be prohibited. This is a comparatively diminished protection because freedom of religion may be abridged in many ways without being prohibited. The same amendment also suffers from terminological exactitude: Congress shall make "no law" abridging freedom of the press. A reliance on textualism would mean that neither pornography nor direct and successful verbal incitements to crime can be abridged. Yet the absolute of "no law" cannot apply to copyright laws, which can constitute abridgments.
The Fifth Amendment's self-incrimination clause cannot be taken literally either. If the text meant what it says, it meant little when framed because defendants then had no right to give sworn testimony for or against themselves. Moreover, the clause protected the right only in criminal cases, but the right existed in civil as well as criminal cases and in nonjudicial proceedings such as grand jury and legislative investigations. Finally, a person may be compelled to be a witness against himself or herself in noncriminal ways; at the time of the adoption of the Bill of Rights, the Fifth Amendment right protected persons from being forced to expose themselves to public infamy. In 1892, the Supreme Court acknowledged that the text does not mean what it says; the Court declared, "It is impossible that the meaning of the constitutional provision can only be that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself."
Other examples of the text not meaning what it says appear in the Sixth Amendment, which enumerates a variety of rights of the criminally accused available to them "in all criminal prosecutions." "All" is an absolute that admits of no exceptions. Yet the Framers did not intend to extend the right of trial by jury to misdemeanants; persons accused of petty crimes were tried in a more summary manner than trial by jury. In this regard, the Sixth Amendment reinforced the provision in Article III, section 2: "The trial of all crimes, except in cases of impeachment, shall be by jury.…" "All crimes" here means merely all felonies; the exception for impeachments really extended to misdemeanors also. Misdemeanants are still not entitled to trial by jury unless they can be imprisoned for more than six months. The text misleads.
Similarly, the right to the assistance of counsel in all criminal prosecutions does not mean what it says: "In all criminal prosecutions, the accused … shall have the assistance of counsel." "Shall" conveys an imperative; but the amendment merely meant that one might have counsel if he or she could afford it. Not until 1932 did indigents receive the benefit of court-appointed counsel in capital cases in state courts; not until 1938 did all federal defendants receive the right to court-appointed counsel in any criminal prosecution. Juveniles have long been deprived of the right to trial by jury, and no one is entitled to be represented by counsel before a grand jury, which initiates a criminal prosecution. Furthermore, the text does not mean what it says in the provision that in all criminal prosecutions the accused shall be confronted with the witnesses against them; the exceptions to this, in fact, are numerous.
The problem of inappropriate specificity appears in the double jeopardy clause of the Fifth Amendment: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Here the Constitution neither means what it says, nor says what it means. It means "life or liberty," not "life or limb." The reference to "limb" is meaningless because we have long ceased to tear people apart or crop their ears. One cannot be put in jeopardy of loss of limb even if convicted by due process of law at a single trial. The double jeopardy clause implies, however, that a conviction can result in loss of limb. This would surely constitute a violation of the Eighth Amendment's guarantee against cruel and unusual punishment. The text also leads to a logical puzzle. Life may be taken if one receives due process and is not exposed to double jeopardy. But if limb may not be taken, why may life be taken?
The second amendment is both vague and ambiguous. Some think it upholds the collective right of state militias to bear arms, while others argue that it protects the right of individuals to bear arms. But this right existed only to maintain militias. If a standing army, even in peacetime, has succeeded militias, and if the armed forces provides weapons to those in the service, the reason for the right to bear arms may no longer be as apparent as it once was. "Arms" once meant a flintlock rifle. Does the right to bear arms include a right to bear a Saturday-night special, an assault rifle, or a bazooka?
Vagueness, not ambiguity, saturates the fourth amendment, which prohibits "unreasonable" search and seizure and provides that no warrants shall issue "but on probable cause." "Unreasonable" and "probable" rank high on any list of indefinite terms. It is possible, similarly, to parse every provision of the Bill of Rights and be bewildered by the meaning of the text. Terms such as speedy trial, just compensation, public use, "impartial jury," "excessive bail," "excessive fines," and "cruel and unusual" simply do not permit a constitutional jurisprudence to be based securely on textualism. To speak of strict construction is faintly ridiculous given the imprecision of the provisions of the Bill of Rights and of the fourteenth amendment. Ambiguity cannot be strictly construed. Strictly construing vagueness as well as inappropriately specific terms can equally lead to ludicrous, tragic, or unjust results.
The Constitution is, indeed, as Jefferson once said in exasperation, "a thing of wax that the Judiciary may twist and shape into any form they please." Unlike Humpty Dumpty, the Framers of the Constitution were unable to make words mean what they wanted them to mean. Perhaps they sensed that America would change beyond their grasp, and they did not think they could master the future. Perhaps they understood, with james wilson, that they were representatives "not merely of the present age, but of future times; not merely of the territory along the seacoast, but of regions immensely extended westward." This is the reason the Constitutional Convention accepted the advice of edmund randolph to keep the Constitution focused on "essential principles" so it can "be accomodated [ sic ] to times and events." The text is merely a point of departure; textualism as constitutional gospel is as impractical as original intent. Like original intent, however, textualism is entitled to serious attention, within its distinct limits, because Story was right: the people of the United States ratified the text, only the text, and it is the fundamental and supreme law of the land.
Leonard W. Levy
Laycock, Douglas. 1984 Taking Constitutions Seriously: A Theory of Judicial Review. Texas Law Review 59:343–394.
Levy, Leonard W. 1988 Original Intent and the Framers' Constitution. New York: Macmillan.
Schauer, Frederick 1985 Easy Cases. Southern California Law Review 58:399–440.
Tushnet, Mark V. 1985 A Note on the Revival of Textualism in Constitutional Theory. Southern California Law Review 58:683–700.