Katrianna Brisack: October 2016 Archives

Why I'm a Textualist (Loosely Speaking)

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"We must always remember that it is a Constitution we are expounding."

So spoke Chief Justice John Marshall in 1819, delineating for almost the first time the plenary powers of the federal government. Our country was then in its infancy. The boundary between state and national authority was still unclear; the promise of "liberty" in the Bill of Rights was still a new, ambiguous, unexplained provision; our union was composed of only twenty-one states; and the crucial document in question only had twelve amendments. For over one hundred and ninety-seven years, we have read that ubiquitous decision and cited those ringing words; but somewhere along the way, we appear to have clean forgotten.

The Supreme Court was the first issue brought up in the last Presidential debate, and both candidates were asked how they interpreted our nation's founding charter. Hillary Clinton answered that she saw its articles as flexible, adaptable guidelines changing with the times; Donald Trump indicated that he thought the forefathers' intent should govern their phrases, and it should be construed "as it was meant to be." These views of the Constitution may typify the standpoints of the presidential hopefuls' respective political parties, but both involve a significant amount of reading between its every carefully written line. In light of the ongoing national polemic over the future of our country and the Court, I have re-examined my own perspective on these vital issues - and, once again, have concluded that the Constitution simply means what it says.

The trouble with the Democratic vision of an ever-changing, living document is that simple words are routinely lifted out of their ordinary, relatively constant meanings and given entirely new definitions to further a particular social aim. For example, the case of Goldberg v. Kelly determined that welfare benefits were the rightful property of recipients and therefore cannot be terminated without a full adjudicatory hearing. The motive for this decision was doubtlessly the worthy desire to strengthen the legislative and judicial framework of social reform measures, but the result entirely ignored the nature of the "property" in question - benefits, designed to help an individual get back on his feet without entitling him to an interminable supply of free money. And not only did the holding corrupt our understanding of the word "property" in the Due Process Clause, it continues to cost both the government and its citizens: every time gratuitous payments are made to persons no longer requiring assistance, or the unnecessary expense of holding these hearings is incurred, taxpayer "property" funds the furtherance of this misreading.

That's not to say the Republican conception of a Constitution exactly as the forefathers meant it is perfect either. To think that the authors of any statute, much less the supreme law of the land, wrote down and ratified conclusive, binding words simply because they sounded good; or to think that our fundamental law is to be interpreted like modern poetry, and meaning is to be extrapolated from unspoken undertones and the climate of the time it was written, drastically underestimates the foresight of the Framers. Surely they didn't intend for their broad ringing guarantees of liberty to be straitjacketed by the very institutions they created, just as certainly as they must have realized they were enumerating the central tenets of an enduring nation and therefore must communicate their purposes very clearly. (And if they couldn't figure out that much, then it probably doesn't matter what their master plan for our country was. But personally, I give them more credit than that). Compounding this problem is another dilemma: exactly which Founding Father gets to determine the meaning of the Constitution for all time, anyway? Are we going with Thomas Jefferson's original intent, John Marshall's, Alexander Hamilton's, Benjamin Franklin's, or Gunning Bedford Jr.'s? Because Gunning Bedford Jr. doubtlessly had his own opinion on the matter, and has just as much right to decide on the significance of the sentences he signed as do any of those other estimable persons.

That's where we're left in the dark. The debate on constitutional interpretation is as old as the Constitution itself - it was to the Framers what each of them believed it to be. In 1787 there were as many varied perspectives on these vital issues as there are today, and it ignores the very idea of pluralism our country was founded to foster to suppose that there is one true, correct "originalism." Perhaps to James Iredell, the First Amendment only prohibited prior restraint, just as to James Madison it protected citizens' freedom of expression under nearly all circumstances. Any cursory examination of contemporary essays and speeches reveals these differences and the fallacy of supposing there was any solitary, conclusive opinion on the division of rights between state and federal government and the individual.

They gave us only one place to look to find their final compromises, the one clear statement of their unified purpose: the unambiguous wording of the Constitution itself. Whatever they each understood the phrases to mean, they eventually agreed that those were the phrases that should govern our nation for coming decades and centuries, and we ought to live by that. Each clause shouldn't be constricted or stretched to accommodate a particular political climate, but should be read in its natural and everyday context, meaning no more and no less than it plainly says.

For starters, let's dispense with the misbegotten notion of a Dormant Commerce Clause. All the Constitution itself says on the matter is that Congress retains the right "To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." That's it. It says nowhere that states have to accept hazardous waste originating in other states. Or that lower tax rates for local small businesses are unconstitutional, while "incentive packages" for massive out-of-state factories are perfectly fine. Or that a state doesn't have the freedom to contract to sell its own property, adding the simple condition that raw timber currently on its own land be processed in the state before being exported. (Better believe it. Philadelphia v. New Jersey, 437 U.S. 617 (1978), South-Central Timber Development v. Wunnicke, 467 U.S. 82 (1984)). "Dormant Commerce Clause" aside, all of those measures are lawful uses of the States' police power to protect citizens and further their economic development (and far better ways to do so than the Goldberg v. Kelly approach, if you ask me). The Constitution's plain language does not admit of the subtle inferences that have allowed large corporations to nullify the most basic rights reserved to the states.

While we're at it: the Ninth Amendment, true to its wording, does not mean any one thing in particular. That's the beauty of it. Rather, it recognizes that the Constitution doesn't mention everything and provides the needed elasticity for an enduring document designed to be interpreted literally. A charter riddled with such seldom-invoked protections as the right not to have soldiers quartered in your home (haven't yet found a use for that one myself), while missing vital liberties like freedom of choice or freedom of travel, would not last very long without the Ninth Amendment. But it, like all other constitutional provisions, shouldn't be interpreted either strictly or broadly: it should simply be construed to say exactly what it does. Which boils down to one fundamental tenet on which our national conception of freedom is based:

You have the right to do whatever it is that you want to do, as long as you're not hurting anyone or making anybody pay for it.

Simple enough?

At least it's got to be simpler than the chaos resulting from tailoring straightforward language to promote even the best of political agendas, and/or trying to decide which Founding Father's personal understanding of his government ought to be the law of the land. As Hugo Black once said, "The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice. I have no fear of constitutional amendments properly adopted, but I do fear the rewriting of the Constitution by judges under the guise of interpretation." Our country would do well to remember that now.

About this Archive

This page is a archive of recent entries written by Katrianna Brisack in October 2016.

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