Textualism is a prominent framework for interpreting the Constitution, particularly in conservative circles. Adherents of this school generally believe you can understand the Constitution simply by reading the words in the document and determining the “plain meaning” of the text. This differs from the “intent” of the framers or the “original meaning” as understood by ratifiers.
While textualism provides a good starting point, it often has some limitations. Reading the text alone can lead you astray if you don’t have some knowledge of the historical and legal framework within which the Constitution was drafted and ratified.
Following are three primary things you need to understand to have a good foundation for grasping the original meaning of the Constitution.
The Changing Meaning of Words
Words mean things and the meaning of words change over time. Words can also have different definitions in a legal context than they do in common use. That’s why it’s crucial to understand the meaning of words and phrases at the time the Constitution was drafted and ratified.
James Madison made this point in a letter to Henry Lee.
“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!” [Emphasis added]
Academic textualists concede this point and generally try to determine the plain meaning of the Constitution based on the vocabulary of the day. But Madison reveals a big problem average people will run into if they try to understand the Constitution based simply on “what it says.”
A good example of this problem is the change in the definition of the word “commerce” over time. It had a much narrower meaning in the 1700s than it does today, and if you read the commerce clause using the modern meaning of the word, it will allow the federal government to wield much more power than intended.
In the founding era, commerce almost always had an economic meaning and was associated almost exclusively with the sort of activities engaged in by merchants.
As Rob Natelson noted in his paper “The legal meaning of commerce in the Commerce Clause,” this included “buying and selling products made by others (and sometimes land), associated finance and financial instruments, navigation and other carriage, and intercourse across jurisdictional lines.” [Emphasis added]
Today, “commerce” generally means any economic activity.
The commerce clause was never meant to give the federal government power to regulate manufacturing, agriculture, labor laws, workplace safety, or the host of other activities now micromanaged by the feds today under the modern definition of the word.
This is just one example of how the changing meaning of a word can alter our understanding of the Constitution. Referring to founding-era dictionaries and other period sources can help avoid this pitfall.
Historical Context
Political systems evolve from ideas. In order to fully grasp the system, you need to the historical context that birthed the ideas and their evolution through time. So, to properly understand the Constitution, it’s important to know the history that led to its drafting and ratification.
The United States were born out of the American Revolution. But it wasn’t so much about the war. As John Adams explained, the real revolution was a revolution in thought.
“What do We mean by the Revolution? The War? That was no part of the Revolution. It was only an Effect and Consequence of it. The Revolution was in the Minds of the People, and this was effected, from 1760 to 1775.”
He went on to say, that a “radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.”
The most fundamental change was the shift from believing that government is sovereign (possessing supreme or ultimate power) to believing sovereignty was in the people. As James Wilson put it, “The truth is, that, in our governments, the supreme, absolute, and uncontrollable power REMAINS in the people.”
As they began to recognize their own sovereignty, Americans started to question the traditional conception of political power. The colonists began to think of a constitution as something that exists above the government and to reject the idea that government formed the constitution. Instead, they conceived of a constitution as something that binds government.
We see this revolutionary conception of government taking form in the Massachusetts Circular Letter drafted by James Otis Jr. and Samuel Adams. They argued that when Parliament acts outside of its constitutional bounds, it destroys its own foundation.
The House have humbly represented to the ministry their own sentiments, that his Majesty’s high court of Parliament is the supreme legislative power over the whole empire; that in all free states the constitution is fixed, and as the supreme legislative derives its power and authority from the constitution, it cannot overleap the bounds of it without destroying its own foundation; that the constitution ascertains and limits both sovereignty and allegiance, and, therefore, his Majesty’s American subjects, who acknowledge themselves bound by the ties of allegiance, have an equitable claim to the full enjoyment of the fundamental rules of the British constitution.” [Emphasis added]
This led to the realization that constitutions need to be written in order to make the limits on government power absolutely clear.
Understanding this historical context will help you read the Constitution properly. When someone proposes an interpretation that runs counter to these founding-era ideas, or the interpretation sounds like something out of today’s British system, I can almost guarantee that it is a bad take.
Legal Framework
The Constitution is a legal document rooted in 18th-century contract law. To grasp some of the nuances of the Constitution, it’s important to have some knowledge of the legal framework of the day.
Think of it this way; you can’t work an algebra problem unless you understand the rules of algebra. In the same sense, it’s difficult to completely understand the Constitution without some knowledge legal rules of construction at that time.
For example, by enumerating the powers of Congress in Article 1 Sec. 8, the drafters excluded any powers not on the list.
Legal rules of construction dictate that when reading a legal document, the enumeration of certain powers logically excludes all other powers not listed. This is a legal maxim – Designato unius est exclusio alterius – meaning, “the designation of one is the exclusion of the other.”
Understanding this rule of construction clarifies the extent of the “general welfare” clause. If you don’t understand this legal maxim, you might think that Congress to do anything and everything to promote the “general welfare.” Alexander Hamilton explains why this isn’t the case in Federalist #83, and his argument is based on this rule of construction.
“This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.”
This isn’t to say that you need a law degree to understand the meaning of the Constitution. But it is important to grasp the basic legal framework it was written within.
Conclusion
Textualism provides a good starting point for understanding the meaning of the Constitution. But all text needs context. We’ve all seen what can happen when you pull a sentence out of its broader context. It can completely change the meaning of what was said. In the same sense, ripping a clause of the Constitution out of its historical and legal context can lead to misunderstandings. And these misunderstandings generally mean the federal government exercises more power than it legitimately should.
St. George Tucker wrote the first systematic commentary on the Constitution. He offers a good rule of thumb for reading the Constitution that is rooted in this legal and historical context.
“The powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively or individually, may be drawn in question.”
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