Jacob Smith ‘23
Professor Liaison Editor
Dicta features overviews of, musings about, and recent developments in Law School professors’ scholarship, as well as their views about current events and happenings in the law. Professors interested in submitting or being featured in a piece are invited to contact the Professor Liaison Editor, Jacob Smith (js3hp@virginia.edu).
What is “unoriginal textualism”? Exactly what it sounds like. Instead of looking to the past, Professor Frederick Shauer thinks that we should look to what the Constitution’s text means now in interpreting it.[1]
It is worth starting with how “unoriginal” or “contemporary meaning” textualism differs from originalism. Originalists are generally textualists who think that the language, the text, of the Constitution should constrain governmental actors. Unoriginal textualism agrees with that premise. But originalists also believe that the meaning of the Constitution’s text was fixed at the time of ratification: the words mean now what they meant “originally.” Professor Schauer’s insight is that one can be a textualist who views the constitutional text as authoritative and constraining without accepting fixation, without looking to the text’s past meaning to understand the text.
At first glance, this proposal might seem baffling. What do you gain by swapping out the eighteenth-century (or nineteenth-century) meaning of a word for its twenty-first-century meaning? One might think that judicial wisdom accrues over time, resulting in the evolution of a better, higher form of our Constitution under a common-law constitutionalist approach. But no one directs the evolution of the English language. Why entrust the meaning of the Constitution to a rather random process?
But, as it turns out, Professor Schauer’s paper operates under the assumption that in “most cases,” the difference between original and modern meaning “will turn out to be inconsequential.” Even when the modern meaning of the text turns out to be vague or underdetermined, it will be because the original meaning of the text was also vague or underdetermined. Unoriginal textualism is not a movement aimed at changing the substantive meaning of, say, the Second Amendment.
Instead, the thrust is methodological: lawyers, judges, and public officials forced to grapple with the constitutional text can rely on their own impressions of how the English language works. They can look at a modern dictionary instead of an eighteenth-century dictionary. Busy lawyers will find the Constitution more accessible because they do not need to treat it as an ancient text written in a different tongue. There will be no need for judges to become “amateur historians.”
Making the Constitution more accessible is important to the constitutional purpose of constraining government officials. We want government officials to obey the Constitution and accept its constraints, even when judges are not yet looking over their shoulders. Now, in practice, government officials generally do follow the Constitution when its text is straightforward and easy to understand. For example, presidents do not run for third terms and defy the judiciary to remove them from office.
Unfortunately, much of our Constitution is not straightforward, but vague. Therefore, it is less effective at directly constraining government officials. Congress has passed laws directly conflicting with Supreme Court precedent interpreting less lucid Constitutional language. One example is the Flag Protection Act, which was passed just weeks after Texas v. Johnson (which found flag-burning to be protected speech) and was predictably struck down within a year. When I asked Professor Schauer why officials would do such a thing, he explained it as a logical calculation: voters care much more about short term political goals than long-term fealty to the constitution. No politician will lose votes for passing popular legislation that later turns out to be unconstitutional.
Of course, it’s too late to rewrite the Constitution to make it clearer. But how we interpret the Constitution today can make its meaning more or less accessible. When the Supreme Court considers an issue, it can hand down clear decisions to better constrain and guide government officials. But when a constitutional issue has not been adjudicated, the government officials and their lawyers will have to interpret the Constitution for themselves. At that point, a method of constitutional interpretation that is “actually usable,” that allows us to rely on our knowledge of contemporary English, will make the Constitution’s meaning more accessible, more straightforward, and more constraining.
Whether you think contemporary meaning textualism is a good idea or a bad one, you can certainly learn a lot from Professor Schauer’s paper. Perhaps the biggest takeaway for me was simply how important it is that law constrains, even when no one bothers to bring a lawsuit. Rules do most of their work without a judge ever getting involved: for every traffic ticket there are thousands of maneuvers, lawful and unlawful, the police never see. That important function is worth considering when thinking of how judges should judge and lawmakers legislate.
And it is worth remembering that law school is hard for a reason. Even lawyers often find it difficult to figure out what the law is, especially in the context of constitutional law. Government officials (and other non-lawyers) desperately need lawyerly aid both to understand what the law requires and why it is important to comply. That’s an important responsibility--even if it doesn’t require becoming an amateur historian.
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js3hp@virginia.edu
[1] Professor Schauer argues for this position in his paper, Unoriginal Textualism, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3911956 and forthcoming in the George Washington Law Review.