Publius
Well-known member
Alright, we cannot discuss originalism without addressing textualism, so...
Originalism and textualism are legal theories often championed by conservative Supreme Court justices, both advocating for the Constitution to be interpreted according to its 18th-century meaning and the plain text of the document, respectively. While these approaches aim to preserve the Constitution's integrity, they fundamentally misunderstand the Founders’ intentions for a living, adaptable Constitution. Note, this is not to say these methods should be discarded, arbitrarily, either, that is not the point.
Critically, the Constitution does not explicitly grant the power of judicial review to the courts—a power that only became formalized with Marbury v. Madison in 1803. Originalists and textualists might argue that judicial review can be inferred from the Constitution’s structure or implied by the text, but this is not clear-cut. If originalism demands strict adherence to the 18th-century understanding and textualism insists on a literal interpretation of the text, then logically, Marbury itself should be questioned. The decision established a power that is neither explicitly mentioned nor clearly implied by the text. Without Marbury, the Supreme Court would lack the authority to interpret and uphold the Constitution, leaving it like a ship without a captain—rudderless and vulnerable to the whims of competing factions.
The necessity of Marbury is undeniable; it provides the teeth necessary for the judiciary to function effectively. Critically, the Constitution does not explicitly grant the power of judicial review to the courts—a power that only became formalized with Marbury v. Madison in 1803. From this arose the legal doctrine of the 'penumbra' or 'penumbra reasoning/logic,' which allows for the inference of certain rights or powers from the broad structure and principles of the Constitution, even if they are not explicitly mentioned. However, its existence exposes a glaring contradiction in both originalism and textualism: how can theories that prioritize 18th-century understanding or literal textual meaning support a decision that introduced a non-textual power? This contradiction reveals the inherent instability of these theories and their struggle to reconcile with the practical realities of governance.
Moreover, both originalism and textualism often fail to account for the Constitution’s intended flexibility. The Founders, particularly in documents like The Federalist Papers, acknowledged that the Constitution would need to adapt to unforeseen circumstances and evolving societal norms. In The Federalist No. 37, James Madison discusses the challenges of framing a government capable of evolving over time, recognizing the necessity of a system that balances stability with flexibility. Similarly, in The Federalist No. 44, Madison emphasizes the importance of broad language in the Constitution to ensure its enduring applicability: 'Wherever a general power to do a thing is given, every particular power necessary for doing it is included.' This reflects the Founders' understanding that the Constitution must grow with the nation.
Textualism, by focusing solely on the literal meaning of the text, and originalism, by tethering interpretation to a static point in history, both ignore this foresight and risk turning the Constitution into a relic rather than a living framework for governance. Critics of this view might argue that the amendment process provides the necessary flexibility for the Constitution to evolve. This is true to some extent, but in today’s polarized political climate, amendments are nearly impossible to pass, effectively stifling the Constitution’s ability to adapt. What’s needed is not sweeping changes that require amendments but rather nuanced judicial interpretations that consider the broader climate of our era. Such interpretations allow the Constitution to remain relevant without undermining its core principles.
As the renowned law professor Paul Freund noted, 'No judge—no decent judge—will decide a case on the basis of the political temperature of the day, but all judges are influenced by the climate of the era.' This reflects a deeper understanding that while the Constitution’s core values are timeless, their application must reflect contemporary realities to maintain their relevance and justice. Look, I've offered this view in other forums, and the oft reply is 'you can't rule on the constitution with willy nilly interpretations'. Right, of course, but that is NOT what is being suggested here.
Justice Stephen Breyer further illustrates this with his critique of originalism and textualism: '...originalism would limit the kinds of liberty...under the Fourteenth Amendment to those contemplated by men who existed in a time when women were not considered to have a legal identity separate from their husbands.' Breyer’s observation underscores how rigid adherence to these theories can lead to outcomes that are out of step with modern values and societal progress.
For those interested in exploring these ideas further, including discussions on the Founders’ debates and intentions, I recommend this in-depth analysis from The Atlantic: https://www.theatlantic.com/ideas/a...-constitution-framers-judicial-review/671334/ If that has a paywall, try incognito mode or the wayback machine or Yahoo reprints, occasionally.
Let's discuss.
Originalism and textualism are legal theories often championed by conservative Supreme Court justices, both advocating for the Constitution to be interpreted according to its 18th-century meaning and the plain text of the document, respectively. While these approaches aim to preserve the Constitution's integrity, they fundamentally misunderstand the Founders’ intentions for a living, adaptable Constitution. Note, this is not to say these methods should be discarded, arbitrarily, either, that is not the point.
Critically, the Constitution does not explicitly grant the power of judicial review to the courts—a power that only became formalized with Marbury v. Madison in 1803. Originalists and textualists might argue that judicial review can be inferred from the Constitution’s structure or implied by the text, but this is not clear-cut. If originalism demands strict adherence to the 18th-century understanding and textualism insists on a literal interpretation of the text, then logically, Marbury itself should be questioned. The decision established a power that is neither explicitly mentioned nor clearly implied by the text. Without Marbury, the Supreme Court would lack the authority to interpret and uphold the Constitution, leaving it like a ship without a captain—rudderless and vulnerable to the whims of competing factions.
The necessity of Marbury is undeniable; it provides the teeth necessary for the judiciary to function effectively. Critically, the Constitution does not explicitly grant the power of judicial review to the courts—a power that only became formalized with Marbury v. Madison in 1803. From this arose the legal doctrine of the 'penumbra' or 'penumbra reasoning/logic,' which allows for the inference of certain rights or powers from the broad structure and principles of the Constitution, even if they are not explicitly mentioned. However, its existence exposes a glaring contradiction in both originalism and textualism: how can theories that prioritize 18th-century understanding or literal textual meaning support a decision that introduced a non-textual power? This contradiction reveals the inherent instability of these theories and their struggle to reconcile with the practical realities of governance.
Moreover, both originalism and textualism often fail to account for the Constitution’s intended flexibility. The Founders, particularly in documents like The Federalist Papers, acknowledged that the Constitution would need to adapt to unforeseen circumstances and evolving societal norms. In The Federalist No. 37, James Madison discusses the challenges of framing a government capable of evolving over time, recognizing the necessity of a system that balances stability with flexibility. Similarly, in The Federalist No. 44, Madison emphasizes the importance of broad language in the Constitution to ensure its enduring applicability: 'Wherever a general power to do a thing is given, every particular power necessary for doing it is included.' This reflects the Founders' understanding that the Constitution must grow with the nation.
Textualism, by focusing solely on the literal meaning of the text, and originalism, by tethering interpretation to a static point in history, both ignore this foresight and risk turning the Constitution into a relic rather than a living framework for governance. Critics of this view might argue that the amendment process provides the necessary flexibility for the Constitution to evolve. This is true to some extent, but in today’s polarized political climate, amendments are nearly impossible to pass, effectively stifling the Constitution’s ability to adapt. What’s needed is not sweeping changes that require amendments but rather nuanced judicial interpretations that consider the broader climate of our era. Such interpretations allow the Constitution to remain relevant without undermining its core principles.
As the renowned law professor Paul Freund noted, 'No judge—no decent judge—will decide a case on the basis of the political temperature of the day, but all judges are influenced by the climate of the era.' This reflects a deeper understanding that while the Constitution’s core values are timeless, their application must reflect contemporary realities to maintain their relevance and justice. Look, I've offered this view in other forums, and the oft reply is 'you can't rule on the constitution with willy nilly interpretations'. Right, of course, but that is NOT what is being suggested here.
Justice Stephen Breyer further illustrates this with his critique of originalism and textualism: '...originalism would limit the kinds of liberty...under the Fourteenth Amendment to those contemplated by men who existed in a time when women were not considered to have a legal identity separate from their husbands.' Breyer’s observation underscores how rigid adherence to these theories can lead to outcomes that are out of step with modern values and societal progress.
For those interested in exploring these ideas further, including discussions on the Founders’ debates and intentions, I recommend this in-depth analysis from The Atlantic: https://www.theatlantic.com/ideas/a...-constitution-framers-judicial-review/671334/ If that has a paywall, try incognito mode or the wayback machine or Yahoo reprints, occasionally.
Let's discuss.
