Schauer on "Unoriginal Textualism"

 Frederick Schauer recently posted an article, Unoriginal Textualism, on SSRN. Here is the abstract:

The burgeoning debates about constitutional interpretation show no signs of abating. With surprisingly few exceptions, however, those debates involve a contrast between textualism understood as some form of originalism, on the one hand, and various varieties of less textually focused living constitutionalism, on the other. In conflating textualism with originalism, however, the existing debates ignore the possibility of a non-originalist textualism – a textualism tethered not to original intent and not to original public meaning but, instead, to contemporary public meaning – public meaning now. This article explains the plausibility of just such an “unoriginal” textualism and argues that it might serve the guidance and constraint functions of a constitution better than any of the alternatives now on offer.

This approach to constitutional interpretation is very much in line with a "present public meaning" approach suggested at the end of an article that I coauthored with Al Hiland. That article focused on difficulties that originalists face in implementing their theories--focusing, in particular, on the inability of judges and attorneys to engage in the necessary historic research to determine the original public meaning of constitutional provisions. This is a significant problem for originalists, most of whom argue (in one way or another) that the Constitution should be interpreted based on its original public meaning.

After surveying and describing obstacles to determining original public meaning and arguing that reliance on legal academics was unlikely to be the solution that some originalists hope it to be, we propose the alternate theory that rather than being bound by the original public meaning of the Constitution and its amendments, that courts be bound by the present public meaning:

In the context of this Article’s criticism, the present public meaning approach seems appealing—it avoids the need for the complicated and goal-oriented method of studying the constitutional record and the undefined, unworkable method of immersion. It likely leads to much more thorough and representative corpus linguistics analysis, as the internet enables the construction of corpora that are magnitudes more extensive and representative than those available for founding era language. And it better prevents scholars, advocates, and courts from reaching politically motivated conclusions by modernizing the basis for interpretation— allowing the general public to check or speak out against mistakes, rather than letting courts hide behind a curtain of selective historic citations. As for concerns about linguistic drift, this can be minimized by reading the text of the Constitution as a whole with an eye to relevant context thereby avoiding absurd results that originalists flag.

I tend to refer to this approach as the "present public meaning" interpretive approach (I supposed I could also refer to it as "present public meaning textualism"). Schauer refers to this as "unoriginal textualism" or "non-original textualism." 

Schauer points out that the fact that the Constitution is written does not preclude expansive and flexible interpretations--noting that Chief Justice Marshall suggested as much in McCulloch v. Maryland. Rather than seeking to be bound by the past in interpreting the Constitution--say by original intent or original public meaning--Schauer suggests that the text still be treated as authoritative, but that its meaning be determined in light of the present meaning of the text. 

After amassing examples of how the Constitution is not written to speak only to judges, but also to members of the public, Congress, jurors, and others, Schauer writes:

An important feature of these and countless other examples is that often there is no Supreme Court decision dealing with the question, and there is often neither the time nor the resources for the constrained official to try to figure out what some word or phrase or sentence was publicly understood to mean in 1787, or 1791, or 1868. As a result, if it is important that the Constitution constrain officials, and if it is important that it do so even in the absence of litigation, then it follows that it is equally important that those whom the Constitution seeks to constrain be able to understand the Constitution directly. And although the Constitution’s for all practical purposes unremediable vaguenesses may make such an aspiration a fantasy for many of the document’s most consequential provisions, it does not do so for all of them. And for those words and phrases that do have relatively determinate meanings, the constraint function can be served only if we understand the Constitution to mean now what its language means now to its addressees. This is textualism, but it is not the textualism of meanings from a century and a half to more than two centuries ago. It is the textualism of the text now, and thus of the text’s meaning now. It is the textualism that tells Congress how to count the votes of the presidential electors without having to engage in extensive historical research, just as it is the textualism that does the same for the Senate in determining how to conduct an impeachment trial, for the prosecutor deciding whether to present evidence coming from a witness not present for trial, and for any official seeking to determine what the Constitution requires under circumstances in which no court has yet authoritatively adjudicated the issue.

The argument for contemporary meaning textualism, therefore, is the argument from guidance. The most obvious manifestation of that guidance function comes when the Constitution constrains even well-meaning officials from doing what they would otherwise be inclined to do on policy or political grounds, but the guidance function is not limited to constraining. As the examples of counting electoral votes and determining impeachment procedures illustrate, guidance is applicable even when constraint, in the sense of second-order constitutional constraints on first-order policy preferences, is not at issue. But whether constraining or just instructing, the Constitution, as with any other law, is likely to operate most efficiently and effectively when its addresses know what the law requires without the intervention of the courts. If we think that “Stop” signs work best when motorists stop simply because the sign tells them to, then we can imagine the same dynamic, at one or several removes, for the Constitution. And if we believe that, then we should accept the value of a constitution that can, in theory and even sometimes in practice, guide in much the same way as the “Stop” sign guides. And for this guidance to be effective, the guiding document must speak the same language as those it addresses. Contemporary meaning textualism is based on the idea that only if we understand the language of the Constitution as it means now can those who seek guidance now know what the Constitution requires of them. [footnotes omitted]

I'm inclined to agree, and I think it is correct to consider the Constitution in a broader perspective as being interpreted by people and institutions other than the Supreme Court. Not only does a present public meaning approach better guide these actors in interpreting the Constitution, but it allows these actors to better check the Supreme Court, which--if this interpretive method were adopted--would also need to interpret the Constitution and its amendments based on the present public meaning of their provisions. Members of the general public are more likely to be able to readily critique the Court should it depart from the present public meaning of the text. Under alternate approaches, such as original public meaning originalism, the Court may use selective or incomplete citation to historic sources (or to secondary sources providing their own accounts of historic meaning) to reach a desired outcome in a particular case. Parsing through this analysis may prove difficult for the general public--certainly more difficult than evaluating analysis based on the present public meaning of constitutional text.

I'll likely have more to say in the future in support of the present public meaning approach. It's something I've considered for a while, as some of my earliest thoughts and concerns with originalism arose from how the theory renders modernization of the Constitution's meaning impossible. The present public meaning approach also appears preferable from a democratic perspective, accounting for the views of those around today, including African-Americans and women who were unable to vote on or approve any constitutional provisions or Amendments until the passage of the 15th and 19th Amendments. 

These thoughts on this interpretive approach are in their early stages, but Schauer's article represents a significant step towards this method gaining further attention and support. I can only hope that work and other circumstances permit me the time to develop these ideas before next Spring.