How does one properly interpret the U.S. Constitution? Is originalism just a codeword used by “conservatives” to interpret it in the same manner as “liberals” who view it as a “living, breathing document?”
Michael Stokes Paulsen sets out to answer those questions in his paper How To Interpret the Constitution (and How Not To), which reviews two books offering contrasting takes on constitutional interpretation – America’s Constitution: A Biography, by Professor Akhil Amar, and Jed Rubenfeld’s Revolution by Judiciary: The Structure of American Constitutional Law.
It should go without saying that the modern, mainstream understanding of the U.S. Constitution is deeply flawed, and anyone who attends a law school is bound to walk away believing innumerable falsehoods about the founding document. Paulsen says part of the problem is that “most books about the Constitution are not about the Constitution, but about judicial doctrine, institutional practice, or specific constitutional issues.”
Instead, he argues that to understand the Constitution you have to actually read what it says and what those who wrote it said about it. That, he writes, is what separates Professor Akhil Amar’s American Constitution apart from other similar works.
One issue he applauds Amar on is his critique of judicial supremacy, though he adds, “its implications could have been more fully explored – he straddles the issue somewhat, but appears to accept the supremacy of judicial judgments.”
However, on the Ninth Amendment Paulsen takes Amar to task, arguing that his “usual textualist rigor completely fails him: In the only two truly bad paragraphs of the book, Amar proceeds to ‘ponder the existence of’ – he does not explicitly embrace – ’other Ninth Amendment “rights” of “the people” that “might not be inferable from the Constitution’s text and structure but that nevertheless might deserve constitutional status.’”
In other words, Amar opens the door for federal courts to read into the text of the Ninth Amendment and enforce their own views through judicial edict.
Paulsen warns this interpretation has enormous implications:
“Thus does the Ninth Amendment (rather than the Due Process Clause) become Amar’s activist Trojan Horse, a gift that, if taken in, could be the undoing of all else. Secreted in the belly of Amar’s view of the Ninth Amendment is a license for marauding judges to depart from the text as they think best – in the name of the text. The Ninth Amendment simply will not bear Amar’s reading. This discussion is the single major flaw in an otherwise magnificent book. But it is a major flaw, from which I invite my old friend to retreat in the second edition (or the paperback).”
Despite this, Paulsen writes that Amar’s book does not argue for a “living constitution,” in which its meaning is subjective and determined by the courts.
“It is a biography in the instructive sense of being the life story of the creation, structure, nature, and meaning of a text that drew on a prior tradition, has been altered dozens of times over a period of two hundred years, and has no fixed endpoint….It is the life-story of the text. But it is rigorously and unrelentingly textualist. America’s Constitution is a written constitution, not an unwritten one. And our written Constitution directs that it is ‘this Constitution’ – a written document – that is supposed to be the supreme Law of the Land, not anything else.”
Paulsen submits that “liberals can learn a lesson from this. They can learn the further lesson that original-meaning textualism is no mere cover for conservative political preferences, that it can yield surprisingly liberal political results on occasion, and that the methodology cannot fairly be reduced to a caricature.”
Likewise, he writes that conservatives can also learn “that principled textualism does not invariably support their preferred substantive outcomes either. One may recognize that originalism is frequently hijacked by its own purported adherents for their own political purposes; and one may recognize that originalism sometimes does not dictate clear answers but merely frames the legitimate bounds of disagreement, without rejecting the methodology itself. America’s Constitution: A Biography is no defense of words-as-springboards ‘living constitution’ judicial activism. It is a defense of the Constitution’s text.”
The commonplace mindset today is that the courts determine the document’s meaning, but also there is specific focus on Supreme Court rulings that offer narrative-approved interpretations.
Paulsen writes that law schools in particular “tend to focus only on cases – and almost exclusively recent U.S. Supreme Court decisions – as the source of constitutional law, ignoring how often, and with such great consequence, the Constitution is interpreted and applied by Congress, the executive branch, lower federal courts, and all branches of state government. They largely ignore history…And most glaringly of all, most modern constitutional law casebooks largely ignore the Constitution itself – the document that is ostensibly the subject of study and the source of “constitutional law.”
Paulsen then proceeds to eviscerate Professor Jed Rubenfeld’s Revolution by Judiciary, which offers a completely different argument for constitutional interpretation than Amar. Paulsen writes that the book “suffers not from any lack of intellectual firepower, but from poor aim. The book suffers, greatly, from disorganized thinking: It posits a problem that does not exist; offers a description of it that does not match reality; then solves it with an ingenious construct, but one that is utterly of the inventor’s imagination.”
In his book, Rubenfeld claims that there’s no case law directing what judges are supposed to do when interpreting the document, an argument Paulsen writes is “nonsense.”
“If there is a problem with constitutional law today, it surely is not that it has ‘almost nothing to say’ about how to ‘go about the business of interpreting the Constitution.’ It is that it has far too much to say!”
The plain truth is that the Constitution isn’t hard to understand, if you’re genuinely trying to understand it. If you’re trying to reconcile the actual document with how it’s interpreted today, that’s where you run into trouble.
As Paulsen puts it:
“Is it really the case that interpreting the Constitution is so inexplicably complex that it requires a Yale professor (or several of them) to devise equally complex grand theories to explain constitutional law? Constitutional law, while greatly interesting, is not a deeply mysterious thing. It takes a Yale professor to make it one. The problem is that the Constitution is reasonably easy to interpret and apply under straightforward criteria but that a fair amount of our constitutional practice is simply not consistent with the meaning of the Constitution. A fair amount of current constitutional practice cannot be reconciled with the original meaning of the Constitution and we tend to treat judicial decisions that depart from the Constitution as nonetheless authoritative, at least sometimes—a practice itself inconsistent with the original meaning of the Constitution.”
He writes further that “my un-grand but radical position (within the small world of academic constitutional theoreticians) is simply this: The enterprise of constitutional interpretation – of discerning the document’s meaning – consists of giving to the Constitution’s words and phrases the meaning they would have had, in context, to informed readers of the language at the time of their adoption as law, within the relevant political community.”
Paulsen correctly observes that when the Constitution is misinterpreted, it constitutes an act of revolution and government overthrow, because by changing the meaning of the Constitution one changes the government itself.
“It may be justifiable as a matter of some political theory or another. But it is not justifiable as an account of constitutional law.”
Paulsen concludes that the correct way forward is through returning to the source, regardless of how one feels about what it says or what it means.
“Pull back the curtain and the candid observer must concede that there really is no Wizard with magical powers. There is only the Constitution and its meaning; a set of decisions and practices that does not perfectly square with it; and a reluctance to face that reality and its implications. We are not in Kansas anymore. We can either return home – which means leaving some of the magic behind – or we can continue to live in this somewhat different world, with all its beautiful, imaginative constructs. But if we wish to live in Oz, we cannot keep pretending that it is the Constitution we are expounding.”
This is why the Tenth Amendment Center is concerned about the Constitution and not about what the president, Congress, or SCOTUS says the document means. If they’re wrong, we have a duty to nullify unconstitutional acts as the “rightful remedy.”
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