Textualism vs. The Living Constitution: Justice Scalia, Judge Gorsuch and the Vital Question for Supreme Court Justices

Textualism vs. The Living Constitution: Justice Scalia, Judge Gorsuch and the Vital Question for Supreme Court Justices February 2, 2017


The die is cast.

Neil Gorsuch, a federal judge from the United States Court of Appeals (10th Circuit), has officially been named President Trump’s nominee to fill the late Justice Antonin Scalia’s seat on the United States Supreme Court. Judge Gorsuch has impeccable credentials with degrees from Colombia, Harvard Law and Oxford, clerked for Judge David Sentelle on the D.C. Court of Appeals and for Supreme Court Justices Byron White and (the sitting) Anthony Kennedy. He achieved partnership in an eminent D.C. law firm, Kellogg, Huber, Hansen, Todd, Evans & Figel and subsequently nominated by President George W. Bush to the 10th Circuit with unanimous approval by the United States Senate.

Judge Gorsuch is regarded as a seasoned practitioner of the law and a wise, fair-minded judge. As President Trump and his administration surveyed the landscape of eligible Court nominees, Judge Gorsuch stood out, in particular, for his deep commitment to textualist interpretation and his engaging, if not captivating, style of opinion writing. He is a staunch devotee to the tradition of law espoused and practiced by the late Justice Antonin Scalia.

But what, exactly, is Scalia’s tradition and why does it matter?

First, let me confess that for years I have been an avid admirer of Justice Scalia. He had his own style. His larger-than-life presence, puckish humor and devil-may-care attitude toward his most vocal detractors has been honestly refreshing in an age of anemic, hand-wringing persona limping along the national scene. His accent was all New York and his attitude never shook his original role as the only – and favorite – grandchild in a large Italian family who was simultaneously and consistently number one in his class. Style was the first captivating element of Antonin “Nino” Scalia.

However, once the hook was set by Justice Scalia’s style (and it is true that just as many people have been repelled as have been drawn to it), the reeling steadily began as I started to truly consider what he had to say. With insatiable appetite, I read his opinions, watched his speeches, absorbed his conferences and listened to his interviews. And to be honest, I had a difficult time disagreeing with the sound logic of the texualist tradition that informed his legal interpretation. With Justice Scalia, to paraphrase G.K. Chesterton, “The moment I ceased to pull against him, I felt a tug toward him… The moment I tried to be fair to him, I began to be fond of him.”

Justice Scalia’s tradition of legal interpretation (and Judge Gorsuch’s as well) is known as textualism. Textualism, as described by Scalia, had been the orthodoxy of legal interpretation from our country’s inception until the enterprising courts of the mid-20th century opted to deviate and transform the Constitution into “a living document.” 

But what is textualism and why does it matter?

Textualism is the interpretive framework that says a judge’s interpretation is informed by and limited by what the text of the law actually says. This may seem to be obvious, but such interpretation is clearly painstaking “lawyer’s work”. The Law, as written in the Constitution, the Bill of Rights and innumerable federal statutes that have been signed into law since our country’s birth, did not just happen. The Constitution was the product of grueling negotiations, fighting, mudslinging, Federalist paper-writing, Anti-Federalist paper-writing and ultimately voting on a carefully crafted, exquisitely worded document that would serve as the edifice for the greatest experiment in self-government the world had ever seen. There were very clear, very precise, very important reasons words were used and not used, concepts were included and left out. But, because the Founding Fathers knew that self-government is government by fallible men (and ultimately, women), they knew that co-equal branches of government were essential to check the appetites and ambitions of those same men. These branches would include an executive to faithfully “execute” the law, a judiciary to ensure faith is kept with what the law said from the beginning, and a representative legislature to afford the people the right to a popular and legal process to bring about change (not contrary to the founding inalienable rights) if it be so desired.

And so given the extreme care with which the Founding Fathers enacted a fundamental national charter and an indispensable system of checks and balances (as Scalia would extol, “structure is destiny”), the process by which law is passed and interpreted was likewise to be undertaken with great care. And so textualists reason that when interpreting the law, the words of the Constitution, Bill of Rights or countless statutes must be read with great care and respected for how they were written. Originalism is a form of textual analysis in which the original meaning of the words in the Founding Document or statute are vital to interpretation. For example, what did “equal protection under the law” mean at the time of the 14th Amendment’s adoption in 1868? What was the wording of the federal statutes or judicial pronouncements that expanded on this meaning in subsequent years? Remember, the wording of these Founding Documents and subsequent statutes were arrived at with painstaking effort. When laws are being enacted correctly, lawmakers recognize that sloppy writing can open doors to abuses, that extraordinary compromise can be achieved with inching the words this way or that. This is why the text of the law is placed at the pinnacle of textualist analysis. That being said, textualism is not utterly draconian in its interpretation. Instead, it relies on the reasonable interpretation of the words (not ignoring words, not making up meanings to fit ideological preconceived notions, but simply being reasonable in light of the words used as they were intended at the time they were enacted into law). A different form of legal interpretation, strict constructionism has a hard-edged literal fundamentalism that blots out the “reasonableness” of words and their meaning when enacted.

Okay, okay…Words, words, words. Why do they matter? What about the intent of the law?

This is where the Living Constitution philosophy of legal interpretation deviates from the proper textualist interpretation. The Living Constitution worldview believes that the Constitution evolves with the changing standards, technology and peoples that populate the United States with succeeding generations. It advocates a nimble Supreme Court “in touch with the times and responsive to the evolving needs of the masses.” As such, the Living Constitutionalists believe that words are somewhat less important and the law’s intent is at a premium. To better understand this, these Justices jettison the primacy of meticulous words (born of deep deliberation, wordsmithing and compromise) assembled together into the statutes or Founding Documents and, instead, seek to divine notions of intent for the modern world with the aid of legislative history (this Senator’s floor speech, that Congresswoman’s committee minutes…and at times, a President’s stump speech pertaining to the law in question, though not part of the document or law itself).

This is where the stars align for dangerous subjectivity to come in… If in my gut, I feel inclined that this law SHOULD MEAN THIS, then all I need to do is find my favorite legislative speech or committee reports (even international law!), reason that the country has evolved and, therefore, the proper interpretation of the law/Founding Documents should evolve with it. This is all done while considering the statutory language as a lesser or malleable component of the larger interpretive process. Oh, yes, and I must be sure to consult my gut as well.

As Justice Scalia would argue, this flawed interpretive approach opens the door for reasoning that the Constitution has no enduring truths. Instead, its phrases are merely a series of empty bottles to be filled with meaning by each generation of judges as they see fit. Feel like capital punishment is unconstitutional under the “cruel and unusual punishment” clause even though it was legal in every state at the time of the penning of that very clause? No problem! Feel like there is a constitutional right to abortion even though it was illegal in every state at the time of the drafting of the Constitution? That’s fine! Devoid of true analysis and enduring logic, the Living Constitution abides by a dangerous legal relativism that essentially says, “If it feels good to interpret the Constitution, Bill of Rights or subsequent statutes according to your judicial appetite (and emboldened by the popular appetite), then just do it.”

But textualists say, “No way.”

The danger in the Living Constitution rests in the compromise of the structure of government (remember “structure is destiny”), the loss of a check on a judiciary that has decided to behave as a legislature. You see, we are all aware of movements that want some cause to be enshrined in law, but they are unsuccessful at the ballot box to gain popular support and, thus, legislative enactment. But now, with a Living Constitution, one doesn’t need to muster such support and passage of law (with an executive signature, no less)… and one doesn’t need to go through the grueling process of a Constitutional Amendment (don’t forget that a huge effort in 1919-1920 was galvanized to pass the 19th Amendment to give women the right to vote…not even the most vocal proponents of this right felt it should simply be tried up through the Supreme Court and interpreted out of the Equal Protection Clause into de facto.)

Justice Scalia reasoned that the lawyerly work of judges is to interpret the law according to statute, irrespective of the mood of the people. The branch of government that should be most removed from the people is the Supreme Court because it defends a country’s Founding Documents and the subsequent enshrined statutory law from the caprice and whims of the people. But that doesn’t mean that a motivated people has no recourse… They can pass a law! They can get a movement, start a petition, lobby their Congresswoman, run for office, fund a campaignand change law through the proper branch – the legislature or via Constitutional amendment. But not through the Supreme Court. As Justice Scalia reminded, “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing those demands on society.”

The Constitution is a guarantor of rights and freedoms, but also a demander of duties and responsibilities. Legislative statutes can further expound on these promises and requirements. Constitutional amendments can alter its structure. But it is not a malleable wish list for an unrestrained judiciary to mold to its personal preferences. Justice Scalia’s clever (but dead serious) riposte to those championing the relativism of a Living Constitution is quite simply, “It’s not a living document. It’s dead, dead, dead.” The gravely achieved results of the Constitutional Convention are not to be trifled with except with legitimate process and great care.

The further threat of the Living Constitution, as Justice Scalia would warn, is that once you walk away from the hard-considered, hard-fought wording of the statute, you are moving more and more into the zone of personal preference (whether you acknowledge it or not). Although, the soft, warm and accommodating Living Constitution methodology sounds more moderate than the more formal, cool textualist approach, Scalia would ask “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?” If the text and its original meaning are not the criterion for legal interpretation, he asks, what will the criterion be? Natural Law? The philosophy of John Rawls? Your own appetite?

One other compelling textualist argument Justice Scalia makes is that to be a true textualist, a judge’s hands are tied to the language. If it is a garbage law, it will yield garbage interpretation (“Garbage in, garbage out.”) And, textualists invariably find themselves wishing the law would come out otherwise, but knowing that an honest textualist interpretation means it will not (“The judge who always likes the results he reaches is a bad judge.”) Having disdain for flag burning, Justice Scalia could not deny that it is protected in the language of the First Amendment saying, “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.” The temptation for Living Constitutionalists is to like all of their own rulings because their appetite, mood and personal conscience can trump the text of the law. Scalia once noted that if we have the legal relativism enough to say that capital punishment was considered “cruel and unusual punishment” by the Founders (when it clearly was not and, in fact, was legal in very state at the time of Constitutional ratification), then perhaps in a harsher society, years hence, that legal relativism may in fact say that thumb screws are NOT cruel and unusual punishment. Without a firm criterion for judging outside of “evolving standards” judges could achieve good as well as heinous ends.

Textualism and the humility that comes with carefully interpreting the words (and their original meaning) of the Constitution, Bill of Rights and federal statutes, allows for judges to do judge’s work. And it allows legislators to do legislators’ work. If our carefully crafted structure of government is compromised by affording judges the ability to make law rather than interpret it, the very fallen appetites of man that the Founders struggled to restrain may indeed regain an upper hand.

In April, 2016, when Judge (and now Supreme Court nominee) Gorsuch was asked to give a lecture at Case Western Reserve University Law School, he redirected the entirety of his talk toward the profound judicial legacy of the recently deceased Justice Antonin Scalia. Judge Gorsuch called Scalia “a lion of the law…with a roar that could echo for miles.”

He then went to add,

“Perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be – not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best…Judges, after all, must do more than consider [the Constitution]. They must uphold it.”

The question before us is, Will the future of our Supreme Court be directed more by Textualists or Living Constitutionalists? And what will our country look like as a result?

We shall see.

The die is cast.


(Best wishes, Judge Gorsuch.)

Photo credit: Pixabay



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