Is There a Constitution in This Text?

Akhil Reed Amar, a professor of law at Yale, begins his new book, Americas Unwritten
Constitution, by calling our attention to two places in Article 1, Section 3 of the Constitution. The
first declares that the Vice President of the United States shall be the President of the Senate. The
second reads, When the President of the United States is tried, the Chief Justice will preside.
It doesnt say why. But the reason, says Amar, emerges upon a moments reflection. Even though
these words say nothing explicit about the vice president it quickly dawns on us that the central
purpose of the passage was to oust the vice president from the chair in presidential impeachment
trials; for were he not so ousted, the vice president would have an intolerable conflict of interest
given that in the event of a conviction, he would ascend to the presidency.
The example illustrates Amars main thesis: The written Constitution cannot work as intended
without something outside of it Americas unwritten Constitution to fill its gaps and stabilize
its meaning. The meaning of the inside the texts literal wordscannot be specified
independently of the outside the set of assumptions and values that hangs over the enterprise
and gives the deeds and words that occur within it shape and point. The text may not enumerate
those assumptions and values, but, explains Amar, they go without saying, and because they go
without saying the words that are said receive their meaning from them. The unwritten
Constitution helps make sense of the text, a sense that would not be available if an interpreter
were confined to a clause-bound literalism.

In fact, the case is even stronger than that, Amar tells us. A clause-bound literalism, a reliance on
the textually explicit, rather than delivering a coherent document would yield only a series of
discrete observations. Amars authority for this assertion is none other than Chief Justice John
Marshall, who acknowledged in McCulloch v. Maryland (1819) that there was no express proviso
for the conclusion he reached, but argued that it was sustained on a principle which so entirely
pervades the constitution, is so intermixed with the materials which compose it, so interwoven with
its web, so blended with its texture, as to be incapable of being separated from it, without rending it
into shreds. Marshall, explains Amar, insisted on reading between the lines to vindicate the
documents spirit, rather than focusing solely on the letter in a way that would fragment and
atomize the document.
But couldnt the letter be enlarged so that the unwritten principle became a written one? Couldnt
the proviso be made express? Couldnt the spirit be made explicit? No, says Amar. Consider the
unwritten principle that no man may be a judge in his own case. You might think that a number of
interpretive puzzles would have happily disappeared had the framers simply been more explicit by
inserting it into the written Constitution. But think again, Amar advises. The scope and meaning
of the principle would still have to be specified, and that could not be done without reference to
some other unwritten principle in the light of which the meaning of judge and his own case
could be stabilized. And if you inserted that second previously unwritten principle into the text, it
itself would have to be stabilized by another, and on and on and on. No matter how many words you
added, there would still be left open a range of questions whose answers could not simply be
deduced from the words themselves.
It is not, says Amar, a matter of poor draftsmanship or of draftsmanship at all. The unwritten
principles that preside over constitutional interpretation should not be thought of as items in a list;
they are, rather, part and parcel of a general project the implementation of American-style
democracy that is not defined and limited by the implications and considerations it gives rise to.
If there is a list, it is one that keeps expanding in the face of new phenomena and new fact
situations, in response to which the project at once reaffirms itself and adds to its storehouse of rules
and principles, most of them unwritten. The whole is always more than the sum of its parts no
matter how many of its parts have been enumerated; and any effort to enumerate them will always
be outrun by the generative power of the whole and will quickly turn a terse text (Amars phrase)
like the Constitution into a monster that, in Chief Justice Marshalls words, has the prolixity of a
legal code. Explicitness, it turns out, is not a possible human achievement, which is no big deal
because communication and understanding do not require it.
What they do require is a grasp of the enterprise within which a particular utterance or writing is
encountered. Here is an example (mine, not Amars) from the enterprise called Higher Education. It
may say in an online schedule of courses or on the bulletin board of a classroom building, Classes
begin on the hour. What could be simpler? But the simplicity and easy understanding will be
experienced only by those who know, and know without reflection, what a class is (know that it is
not a socio-economic population), know why classes are held (what is the end point to which they
contribute) and know what counts as an hour (no one, except in rare and special circumstances, will
think that one of the hours being referred to is 1:00-2:00 a.m.).
It might seem that going to college or teaching in one is an activity less complex than the activity of
engaging in constitutional interpretation. But neither activity can be engaged in by someone who
had not internalized a vast array of assumptions and presuppositions, each of which is an ingredient
of an understanding that can not be gained by rehearsing or cataloging them. Whether negotiating
the course schedule or the Constitution, Quicksand awaits all who insist on reading every clause of
the document literally.
What are the implications of Amars argument? Well, one implication, which he draws out, is that
textualism or clause-bound literalism of the kind championed by Justice Antonin Scalia is a
nonstarter. Not going outside the text leaves the text a document profoundly unresponsive to our
goals and aspirations because our goals and aspirations the huge number of unwritten ones
have been edited out. Another implication, one that Amar does not draw out because he is not
performing as a philosopher of language, is that we have unwritten constitutions in every area of
our discursive life. Whether it is the law, or higher education, or politics, or shop talk, or domestic
interactions, utterances and writings are meaningful only against the background of a set of
assumptions they do not contain. Textualism is not only a nonstarter in constitutional interpretation;
it is a nonstarter everywhere.
When your spouse or partner says, We dont go out anymore, what does he or she mean? Well, it
depends on within which unwritten constitution which understanding of the protocols and
hazards of the domestic project you are hearing the words. Parsing them lexically and
grammatically isnt going to help you. What might help or at least put you in the ballpark is a
sensitivity to everything that has happened in the course of a continuing relationship. The last thing
you want to do in a situation like this is be a clause-bound literalist and start researching the number
of days the two of you have gone out. Thats not what is at stake and you will have a chance of
knowing what is at stake only if, as you listen to the words, you are hearkening to the unwritten
constitution of your life together.

How Scalia Is Wrong

In my last post I defended Supreme Court Justice Antonin Scalias dismissal of those who believe
that the Constitution is a living organism that changes over time in response to societal change. (In a
speech in February, he called them idiots.) The Constitution, I explained, is a document, not a
Rorschach test. As a document something intended to convey a particular message, not all
messages it has its own proper meaning distinguishable from the meanings one might prefer it to
have, and it is the obligation of interpreters to figure out what that meaning is.
Justice Scalias detractors object to his originalism the term of art for those who propose a single
fixed meaning for the Constitution because they believe it goes hand in hand with and is in fact
an engine of his conservative politics. They complain, for example, that if the Scalia doctrine were
strictly adhered to, as Mel Seesholtz writes on saveourcourts.org, one would have to conclude that
all men are created equal means exactly what it meant in the eighteenth century, and we
would have to reinstate slavery, roll back womens rights and refuse (as Justice Scalia has
sometimes seemed to refuse) to recognize that homosexuals have any rights at all. This complaint is
based on the mistake (made by Scalias fans from the other direction) of thinking that originalism is
a method, a thesis that not only asserts a single meaning for the Constitution, but tells you exactly
how to find it and thereby severely restricts what can be found.
But originalism, properly understood (and Justice Scalia himself might not understand it), is not a
method; it is the answer to a question: What must you assume if you are seriously engaged in the
act of interpretation? The answer is, you must assume that there is something to be interpreted. That
also entails the assumption that the something to be interpreted was there before you or any other
interpreter set to work. What that something is what fixed meaning is there to be found is
neither identified nor delimited by the originalist argument. It could be anything; the only constraint
is the requirement that it be the result of an honest effort to determine what the document originally
meant.
Assuming that all men are created equal and that this principle (from the Declaration of
Independence) finds its way into constitutional law via the 14th and 15th Amendments as the
doctrine of equal rights, an interpreter is still left with the task of defining equality in the context of
some legal dispute. For example, in the debate over affirmative action, part of the argument has
been about whether equal rights means the right to equal access (hence no discriminatory
restrictions) or the right to equal results (hence reserving jobs and college admissions for
minorities). Both sides believe that equal rights are what the Constitution guarantees; they just
disagree about what the phrase means. Of course, the issue of affirmative action was not within the
framers contemplation, and some will think that we will have to choose between equal access and
equal results without any help from them. But they have given us all the help we need by
identifying equal rights as a constitutional concern. It is up to us to determine how that concern is to
be honored in our present decisions.

That determination, however, cannot be made simply by declaring that the Constitution has a single
meaning. While the originalist question what is the meaning of the Constitution as drafted and
ratified? may be the right one, the question doesnt answer itself. Nor does it confer legitimacy
on some answers or rule others out of court in advance. You still have to sift arguments, parse
language, immerse yourself in historical archives, and more. You still have to do the interpretive
work, and knowing that you have to do it knowing that you have to search for a meaning that
predates your effort is not the same as doing it.
In short, Justice Scalias originalism his insistence that the Constitution has a fixed meaning
dictates no interpretive results, conservative or otherwise. In fact, no theory of constitutional
interpretation dictates an interpretive result, for theoretical accounts do no interpretive work.
Therefore it doesnt matter whether you have the right one or the wrong one so long as you are
really interpreting and not re-writing or making it up as you go along.
A living Constitution proponent may, in practice, be trying to figure out what the Constitution
actually means rather than what society now needs it to mean. There would then be no relationship
between the theoretical account of that practice and the actual unfolding of that practice. And if the
living Constitution proponent actually did try to match his or her practice to that theory by laboring
to refashion the Constitution so that it serves contemporary urgencies, he or she wouldnt be
interpreting at all, so once again there would be no relationship between the interpretive practice
and the theory of it (because there would be no interpretive practice).
And so in the end I vindicate Justice Scalia again. But I part company with him when he tells us
how to go about the task of specifying the original meaning either of the Constitution or of a statute.
He believes that the text itself is the best key to its own meaning: if we focus on the meanings of the
words as they would have been understood at the time of passage or ratification, we will be
prevented from imposing the meanings we might prefer. This view is known as textualism, and
when Justice Scalia urges it, he often opposes it to intentionalism, the view that meaning is to be
identified with the authors intention. We must decide, he often says, not on the basis of what is
meant, but on the basis of what is said.
But this distinction between the intenders meaning and textual meaning is undermined by
one of the examples he cites to illustrate it. That example turns on a statute that provided for an
increased jail term if a firearm was used in the commission of a crime. The defendant in a drug case
offered to exchange a gun for cocaine, and the Supreme Court ruled that because he had used the
gun in the course of performing an illegal act, he was subject to the longer sentence. (The case was
Smith v. United States, 1993.) Justice Scalia is outraged and declares that this bad result would have
been avoided if his colleagues had been proper textualists. For then they would have been
constrained by the fact that The phrase uses a gun fairly connoted uses of a gun for what guns are
normally used for, that is, as a weapon.
But think again. Guns are used for many things and there are many meanings of the word use
(more than 30 in the Oxford English Dictionary). The problem is how to sort through these
meanings and uses in order to get to the right one. Consulting dictionaries wont do it. Dictionaries
sketch out the scope of the problem; they dont solve it. Determining which use is statistically
normal wont do it, because usages are specific to context and not all contexts are normal.
The only way to do it is to ask yourself what would these particular people legislators charged
with the duty to frame clear and fair laws and contemplating the question of enhanced penalties for
criminal acts have had in mind when they wrote the phrase uses a firearm? What would they
have wanted to penalize, a piece of barter or a threat of violence? It is the obvious answer to that
question a question not about textual meaning or the statistics of usage, but about intention
that tells us why Justice Scalia was right to dissent from his fellow justices who, rather than failing
to be proper textualists, were illustrating the dangers of textualism. Having detached the words of
the statute from the intentions of its drafters, they were free to range through the possible dictionary
meanings of use a firearm and choose one that pleased them. This is exactly the result Justice
Scalia hoped to avoid by insisting on textualism, but it is textualism that produces it.
The example also shows why one of the most often heard objections to intentionalism it requires
us to get inside the heads of interpreters and how do we do that? is off the mark. The drafters of
the statute are acting as institutional agents, and the intentions they might or might not have are the
intentions appropriate to such agents. (Intentionalism is not a psychological thesis, but a rational
one.) What was going on in the head of each individual congressperson what were his or her
private thoughts or motives or misgiving is not to the point. The point is to ask, given the task
they were jointly engaged in, what sense did each of them and of all of them intend for the words
use a firearm?
This argument is likely to seem counterintuitive because it is usually assumed that the dictionary
meaning of words directs us to intention rather than the other way around. But as the example
demonstrates, only the specification of intention can stabilize the meanings of words because the
dictionary gives you too many choices and no way of narrowing them. A dictionary, in fact, is less a
list of meanings than a list of intentional uses, and more information than is provided by the text
alone is required to determine which of those uses is being deployed on a particular occasion.
So Justice Scalia is right to champion originalism, but he backs the wrong version of it. Textual
originalism doesnt do the job because severed from intention the words of the text can mean too
many things. In order to get at the meaning, you have to bring in no, you have to start with
intention. That, however is not the end of the matter, but only its beginning because intentional
originalism, like originalism in general, only tells you what your looking for; it doesnt tell you how
to find it. It doesnt even tell you who the intender is it could be Dick or Jane or God or
Congress or the spirit of the age and it certainly doesnt tell you where to find the evidence of
what the intender be it he, she, they or it intends.
To determine that (or at least try to; interpretation doesnt always succeed) you have to do a lot of
interpretive work. All Im saying is that the point of that work will always and necessarily be the
specification of intention.

Why Bother With the Constitution?

Its Supreme Court nomination time again, which means that it will soon be nomination hearing
time, which means that Elena Kagan will soon be asked how she believes the Constitution should
be interpreted. But just in time comes a new book The Living Constitution, by David A.
Strauss that tells us not to bother about that question because, odd though it might seem, the
Constitution does not play a central role in constitutional interpretation.
In the majority of instances, Strauss argues, the text of the Constitution will play, at most, a
ceremonial role. Even when a case involves the Constitution, the text routinely gets no attention,
for on a day-to-day basis, American constitutional law is about precedents, and when precedents
leave off, it is about commonsense notions of fairness and good policy.
Although rhetorically we have a constitutional legal system one constrained by a command
given in the past and embodied in a sacred text in fact, Strauss contends, we have a common-law
legal system built not on an authoritative, foundational . . . text, but out of precedents and
traditions that accumulate over time and serve as a constraint on transient public opinion.
To some extent, Strauss is right. Day to day the courts view (and configure) the facts and issues of a
case in the light of previously established landmark decisions; the words of the Constitution are
often not invoked. At least descriptively, the history of constitutional interpretation would seem to
proceed as Strauss says it does, by a process of evolutionary accretion and not by an act of
fidelity to an original intention, that is, to an intelligent design.

But the fact that in many cases the Constitution is not explicitly the reference point and motor of
deliberation doesnt mean that deliberation is not being guided by it at a remove. And that is exactly
what is going on in the area of law Strauss cites in support of his thesis the First Amendment.
The American law of freedom of expression, he declares, does not emerge from the text of the
U.S. Constitution or from the original understandings. His example is the appearance in an opinion
by Justice Oliver Wendell Holmes Jr. of the phrase clear and present danger.
Although these words are not in the Constitution, they have been, says Strauss, far more important
in the development of the law than have the actual words of the First Amendment. It was, explains
Strauss, the clear and present danger doctrine and not the adoption of the First Amendment that
initiated a series of cases that led in time to the distinction between advocacy of ideas and
advocacy of action, a distinction also not derived . . . from the text . . . of the First Amendment.
Why is Strauss trying to take the Constitution out of the constitutional interpretation
loop?

This is simply wrong. Like everything else in the sequence Strauss rehearses, the distinction
between advocacy of ideas and advocacy of action is the product of an effort to figure out what it
means to not make a law abridging the freedom of speech. Abridging freedom of speech is a
notion in need of explication. When exactly does it happen? What exactly is speech in the context
of the amendments prohibition?
It cant be that constitutional protection is granted to any verbal production whatsoever, for some
words like those that directly incite riot or perform treason are not speech within the meaning
of the amendment. How do we know that? As Strauss repeatedly observes, the First Amendments
text doesnt tell us. We have to figure it out and we do so by asking what it is that they had in mind
when they singled out speech for protection. What did they fear? What did they hope for? The
standard answers to those questions are, they feared the censoring and criminalizing of dissident
speech, and they hoped for free and open discussion of matters of public concern.
In short, they wanted to protect the expression of ideas, but not expressions like incitement to riot
and treason, which are indistinguishable from action. And thus they wanted (or would have
wanted, had they been asked) to withdraw protection at the point where speech crossed the line and
became action in a way that constituted a clear and present danger. So these phrases and distinctions
(along with a great many others), while not named in the amendment, are implied by it, implied by
the special concern for speech and therefore, despite what Strauss says, are derived from it. What
looks like evolutionary accretion self-generating, self-modifying, immaculate in conception
is, in fact, the unpacking, by succeeding generations, of a text recognized as authoritative and
binding. The question is not, as Strauss would have it, is this proffered meaning in the Constitution?
The question is, can a chain of inference be formed that links this meaning to something the framers
can be said to have intended?
Why is Strauss trying to take the Constitution out of the constitutional interpretation loop? Because
he wants to liberate us from it as a constraint. He repeatedly invokes Thomas Jeffersons remark
that The earth belongs to the living and not the dead and expands it into a question: What
possible justification can there be for allowing the dead hand of the past . . . to govern us today?
That is like asking what justification is there for adhering to the terms of a contract or respecting the
wishes of a testator or caring about what Milton meant in Paradise Lost or paying serious
attention to the items on the grocery list your spouse gave you. In each of these instances keeping
faith with the past utterances of an authoritative voice the voice of the contracts makers, the
voice of someones last will and testament, the voice of the poet-creator, the voice of the person
who will make the dinner is constitutive of the act you are performing. And not keeping faith
raises the question of why we should bother with the Constitution or the contract or the will or the
poem or the list at all. Why not just cut out the middleman (who is not being honored anyway) and
go straight to the meanings you want?
Strauss has an answer to that question: The written Constitution is valuable because it provides a
common ground among the American people. But as it turns out, common ground is provided not
by the Constitution itself but by a survey of widely acceptable meanings, which are then
attributed to the Constitution as if it were their source. The text, Strauss advises, should be
interpreted in the way best calculated to provide a point on which people can agree. The way to do
this, he adds, is to give the words of the Constitution their ordinary current meaning even in
preference to the meaning the framers understood. After all, the original meaning might be
obscure and controversial.
This is an amazing statement. The Constitution becomes common ground when it becomes a vessel
for meanings it does not contain. It acts as a binding agent as long as you dont take it seriously but
take care to pretend that you do. As long as an interpretation of the Constitution can plausibly say
that it honors the text, the text can continue to serve the common ground function.
What text? Not the text of the Constitution, which has been replaced by a plausible facsimile of it.
There is a definite strain in Strausss argument here as he continues using a vocabulary text,
Constitution, interpretation that he is at the same time undermining. You dont interpret a text by
looking for meanings people would find agreeable. You interpret a text by determining, or at least
trying to determine, what meanings the creator(s) had in mind; and the possibility that the meanings
you settle on are not ones most people would want to hear is beside the interpretive point.
The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the
importance of common ground, it makes sense, he says, to adhere to the text even while
disregarding the framers intentions.
I am at a loss to know what adhere is supposed to mean here. According to the dictionaries,
adhere means to stick fast to or to be devoted to or to follow closely. But you dont do any
of these things by disregarding the intentions that inform and give shape to the text you claim to
honor; you dont follow closely what you are in the act of abandoning. Instead, you engage in a
fiction of devotion designed to reassure the public that everything is on the (interpretive) up and up:
The Court could take advantage of the fact that everyone thinks the words of the Constitution
should count for something. Here something means anything, as long as it hooks up with what
everyone thinks; and the advantage the Court is counseled to seize is an advantage gained by
pandering. If this is what the living Constitution is a Constitution produced and reproduced by
serial acts of infidelity I hereby cast a vote for the real one.