The Fallacy of Textualism
Supreme Court nominee Judge Amy Coney Barrett calls herself a “textualist,” which is a theory of Constitutional interpretation she adopted from her mentor and former boss, Supreme Court Justice Antonin Scalia. Textualism is a type of Originalism, which asserts that the Constitution should be interpreted based solely on the text of the document. That seems abundantly reasonable. The problem is that the Constitution provides only a cursory framework for the government, and has no detailed information about how the government should operate.
One particularly relevant example involves the power and authority of the national courts. Article III of the Constitution established the courts, stating that there will be a “Supreme Court” and “such inferior Courts” as Congress may create. The Federal Courts have jurisdiction over cases “arising under the Constitution,” and where the parties are from different states. Article III is completely silent regarding whether the courts have the authority to determine whether a Federal law complies with the Constitution. This judicial authority is known as “judicial review,” and is such an integral part of our legal system that most people assume it was there from the beginning. But it wasn’t.
The Constitution went into effect in 1788, but the issue of judicial review didn’t come up until 1801, after John Adams lost his bid for reelection to Thomas Jefferson. One of the last acts of Adam’s allies in Congress was the creation of dozens of new Judges, and Adams quickly made appointments. Jefferson’s Secretary of State, James Madison (called “The Father of the Constitution”) refused to deliver some of the new judicial commissions. Marbury, one of the disappointed appointees, sued Madison.
In Marbury v. Madison, Chief Justice John Marshall established judicial review. Marshall said that if “the constitution is superior to any ordinary act of the legislature, [then] the constitution, and not such ordinary act, must govern the case to which they both apply.” He also said that it is “emphatically the province and duty of the Judicial Department to say what the law is.”
That absolutely makes sense. Our system wouldn’t work without it. But it’s a rule that isn’t in the text of the Constitution.
If judicial review isn’t in the Constitution, where did Marshall come up with it? Did he simply create it out of whole cloth? No, he applied common sense and long-standing judicial tradition. It was clear that laws enacted by Congress would occasionally come into conflict with provisions of the Constitution, so there had to be a way to deal with that. Marshall turned to well established legal tradition. Marshall, like all the lawyers who wrote the Constitution (including James Madison) had practiced in the British legal system, and that system gives the courts the power to create laws (which is where the “common law” comes from), as well as the authority to review laws, including the laws of Parliament. This tradition was the source of Marshall’s reasoning.
Clearly Marshall didn’t strictly adhere to the text of the Constitution: because he couldn’t. Without judicial review the Constitution would eventually be subsumed by laws enacted by Congress. Marshall went beyond the text, and the Supreme Court has done so many many times over the last two hundred years. They recognized that there are often issues where the Constitution is silent, so they applied a dollop of common sense and a dose of legal tradition. Textualism was created by conservative legal theorists in the 1970s as a way to stop this two hundred-year tradition, because Conservatives didn’t like some of the Court’s ruling in the 1950s and 60s.
Judge Barrett has asserted that she will rigorously apply the text of the Constitution when she reviews laws. It’s more than a little ironic then that the text simply doesn’t give her the authority to do to that. Confused? Me too. Good thing we’re not getting a lifetime appointment to the Supreme Court.
