Constitutional Interpretation

Moving away from the text doesn’t damn us; it saves us.

Constitutional law imposes the burden of constitutional interpretation. The text alone simply cannot answer all of the questions put before it, and unless we accept an interpretative theory that significantly limits the role of practiced constitutional law, we should face facts: we simply must go beyond the document.

But that conclusion cannot be the end of the discussion. In fact, it opens up the possibility for an even harder and messier line of thinking. We must ask new questions: what types of things could exist outside the words themselves? How do we draw principled distinctions between what exists beyond the text (and accordingly, should be a part of constitutional work), and what doesn’t? And who, exactly, is “we,” for that matter?

The writers for this week offer some answers to these questions. Moving away from an interpretive scheme that places emphasis solely on the text, the authors suggest a few approaches that could lend insight into the “invisible constitution.” No approach is perfect. But finding ways to begin the work of unearthing non-textual constitutional law should at least help bring these perplexing issues to light.

Before getting into the murky details, it might be worth a moment to point out what I see as the true benefit to thinking outside the text. Black put it best by noting that “the textual method, in some cases, forces us to blur and talk evasively, while the structural method frees us to talk sense.”[1] Strict adherence to the text, coupled its application to new problems, results in quibbling over issues that are not critical to anyone’s understanding of constitutional life. As Primus points out, Bolling v. Sharpe makes, from a strict textualist perspective, little sense. But who would deny its proper role in ordering public schools in the District of Columbia? In constitutional law, function trumps form.

The first and most obvious objection to this point is that allowing extra-textual considerations into the constitutional scheme gives judges too much power. What could limit judges if not the sacred text? One brief point moves against this argument. It is somewhat doubtful that strict textualists are really restraining themselves all that much in the first place. Take, for example, Carrington v. Nash. Does the equal protection clause, with its minimal requirement of “reasonableness,” really invalidate the Texas law? Or were the justices simply searching for a textual anchor before enshrining our intuition that the law unfairly denied Nash one of the primary benefits of citizenship? If the latter is true, surely it is better to bring that reasoning into the light of day, rather than insisting on some mangling of the Fourteenth Amendment.

The work, however, is unfinished. Accepting non-textual interpretation does not tell us what extra-textual sources are legitimate, principled, or good. Here is where the authors diverge. Black offers the structuralist argument: the extra-textual source is the “inference from the structures and relationships created by the constitution in all its parts or in some principal part.”[2] He notes a few structures (the national government, nationhood itself, among others) and reinterprets key cases using his methodology in order to demonstrate the method’s seaworthiness.

Black argues, for instance, that a citizen’s need to communicate with Congress is enough to protect political speech of individuals against the state. Thus, it is the relationship between voter and Congress, not the Fourteenth Amendment by incorporation, that protects the voter from a state law prohibiting free speech. Another interesting (but possibly less convincing) example in Black’s discussion is the concept of “citizenship.” Discussing race, he argues that the Fourteenth Amendment’s grant of citizenship grants more than an “honorific label” but also a guarantee that a citizen may “be allowed, both by the state and by those who actually control the matter, to participate fully in the public life of society of which he is a citizen.”[3]

Perhaps one of the major problems with this type of structuralism is that the structures and relationships themselves change. The question then is whether the changes in these structures should influence later interpretations, or if structures understood as emerging strictly from the text of the Constitution itself should alone be recognized as valid sources for interpretation. Do structural forms emerge from the practice of constitutional living? Or do they emanate from the words of the text itself, like Justice Douglas’s penumbras?

Black seems to suggest that his structuralism is about practicality. “I am inclined to think well of the method of reasoning from structure and relation. I think well of it, above all, because to succeed it has to make sense — current, practical sense.” What matters to Black seems to be something other than blind fidelity to a historical understanding of the republic; instead, he appears more concerned with a pragmatic inquiry into the way things work. The method of structuralism naturally lends itself well to this enterprise, but only if it demands that judges should examine the way things work now.

This might be the tie-in with Primus’s article, which concerned itself with constitutional expectations. Primus argues that we have “intuitions about how the system is supposed to work. They arise from a combination of experience, socialization, and principle.”[4] In a certain sense, Primus’s theory of constitutional expectations complements Black’s. But in a deeper sense, Primus might be taking a step even further from the text. For Primus, valid constitutional law includes extra-textual sources like experiential, social, and principle-based intuitions, even when these sources contradict the plain meaning of the text itself. Pointing both to the trivial example of the Presidential oath and the non-trivial example of the District of Columbia, Primus notes that “sometimes our constitutional expectations actually override the text.”[5]

One possible distinction between Primus and Black is the question of who this “we” really is. Primus does not seem to be limiting universe of individuals whose constitutional expectations matter to nine justices of the Supreme Court. Implicit in the conversation about constitutional expectations is that these expectations emerge from society as a whole, from the collective understandings of individuals across the nation. The important and enlightening caveat to all this, however, is that the role of a judge is not merely to adopt constitutional expectations of the populace as a whole into the jurisprudence unquestioningly (as we suppose a legislator ought to listen to constituents). Rather, the judge should recognize the expectations and compare them with the text itself. Therefore, the optimal methodology is not to overrun the text of the Constitution with these constitutional expectations; rather, the best way to decide cases is to add expectations as a weight on the scale against, if need be, the text.

Thus, we return once again to the central virtue (as I see it) of extra-textual interpretation: bringing these issues out of the dark corners of obscure textual interpretation and into the light of accepted legal reasoning. When judges approach constitutional questions, the text should not be used as an excuse to prohibit broader discussions about practical concerns. Sweeping the real reasons for case law under the rug does not result in constitutional fidelity. It might actually result in the opposite. Instead, judges should incorporate the text itself as a yet another key piece of our constitutional structure. The text exists within it, not outside it. And while the document may be our keystone, judges should be willing to place weight on constitutional crossbeams, as well.

Finally, when the Great Chief Justice John Marshall sat down and wrote McCulloch, was he attempting solely to extract an answer to an extraordinary national question from the text? Or was he viewing the national debate, examining the competing arguments concerning federal and state power, noting the powers delegated to Congress by the Constitution, before finally coming to a reasoned decision? My suspicion is that the reason he is the Great Chief Justice, not just the Competent Chief Justice, is our inherent recognition that the good of his vision is its breadth.

The issues facing judges today are no less critical than the question of a Bank of the United States. If we accept that judges must answer important questions, we should not hinder them by strict adherence to the text. We should, in fact, demand that their deliberation is unfettered (but principled), and open (not obscured).

[1] Charles Black, Structure and Relationship in Constitutional Law, 13 (1969).

[2] Id. at 7.

[3] Id. at 54.

[4] Richard Primus, Constitutional Expectations, 109 Mich. L. Rev. 91, 93 (2010).

[5] Id. at 94.