Text & Meaning: Constitutionalism for the Elites?

In the wake of several monumental district court decisions — enjoining SB1070, and invalidating California’s discriminatory Proposition 8 — we should brace ourselves for the resurgent old narrative, that a minority of “elitist” judges ought not be in the business of preventing the majority from indulging in its favorite blood sport, discrimination.

As anyone with a passing interest in American constitutional theory will tell you, the opposite is true. When the majority mistakes its moral whim-of-the-moment for some foundational tenet, obscured but nonetheless present in our shared past, it is “emphatically the province and duty of the judicial department” to inderdict them in their quest to leverage it for personal gain, unless the pursuit also represents some part of the legitimate work of governing.

A more salient criticism is the observation that, in the process of judging, most jurists will rely on doctrines, theories, and terminologies wholly extrinsic to the Constitution itself, and to any governing law. Take this recent comment from Concurring Opinions:

I think it’s the persistent belief among laymen that, at SOME POINT, the actual text of the Constitution has got to start mattering. That the judiciary aren’t completely corrupted.

It’s a naive belief, and there was never much to support it, but it’s been out there. When it finally goes away, so will the popular legitimacy of the courts, I suspect.

It’s true that modern constitutional litigation has far outgrown the actual text of the document. For their parts, not even textualist scholars dispute this premise, as they, too, use the text as a starting point for a larger structural or deeper linguistic analysis. The vagueness of the document requires as much (what is a “commerce”?). When resolving a dispute with any degree of complexity, it’s impossible to exclusively rely on the words on the page. And that’s the way it was meant to be. Constitutions are starting points, and the early judiciary, populated with men who had helped draft or even sign the Constitution, was already in the process of building up doctrine that would calcify around the Constitution’s key requirements, and later supplant the text, at least for the purposes of legal analysis.  Legally, this is good: the generation of doctrine promotes predictability, where recourse to the text alone would require every case to start from first premises. It’s also the way the common law system works, and precisely what the Founders had in mind.

Politically, though, it’s a disaster. Many of the most important modern doctrines aren’t discernable without full knowledge of the history behind them and, without that knowledge, look for all the world like they sprung fully-formed from the head of the latest judge to incur the right wing’s wrath.

“Tea party” talking points about “respecting the Constitution” play off this alienating effect, and gain traction where first premises look more attractive than the rules that they’ve generated, over the course of the centuries. In a sense the tea party view of the Constitution is an anarchic one — aimed squarely at erasing those rules, to get back to the Constitution’s primitive roots — and one that suffers from the same problem of other anarchic movements. It’s short-sighted, and ultimately contradictory. In human society, order fills chaos. The Constitution is a hollow shell without the citizens, lawyers or laymen, whose controversies give it substance. Tea partiers know this, and want a tabula rasa not for its own sake, but so they can populate it with their notion of the way things should’ve been. It’s chronological primitivism, plain and simple, but one legitimized by the presence of a foundational document, and bolstered by the feeling that, somewhere along the line, the text stopped mattering.

How do we fight that? We’re right that the text should be a starting point only, but that’s not enough.



  1. I wouldn’t worry too much. It’s understandable that people get upset when they’re sometimes told what they think doesn’t matter, but I’m guessing even the most fanatic tea partier will still go to lawyers and the courts when they themselves think their rights have been infringed. As long as they do that, the system has fundamental legitimacy, despite complaints about particulars.

  2. Blood sports are good things. Don’t use them as a metaphor for a bad thing, please.

  3. Since my last comment was nothing but a jab at the Catalan Parliament (I wish America had bullfighting, it would be good for our psyches), I figure I ought to make a topical observation to make up for it.

    Every conceivable law must fall into one of four categories:
    1. Laws that only the Federal government may pass.
    2. Laws that either the Federal or a State government may pass.
    3. Laws that only a State government may pass.
    4. Laws that no government may pass.

    You’re arguing with people who say that the Constitutional text plainly puts the majority of all imaginable laws in categories 3 and 4, while 20th Century jurisprudence puts the majority of all imaginable laws in categories 1 and 2 (I’d say primarily 1). While I don’t see what the big difference is between 1, 2, and 3, there’s a gaping abyss in the practical effect of switching from Category 4 to any of the first three. The fight you have to win, if you wish to succeed, is convincing people that bridging that abyss is a good thing.

    That’s no easy task.

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