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What is Constitutional Accountability?
The text of the Constitution must be the primary source of judicial guidance in deciding constitutional cases: that is what the judicial oath requires. An approach to constitutional interpretation that starts with a very careful parsing of the words of the Constitution is sometimes called “textualism.” It is an approach best exemplified by great Supreme Court opinions written by justices such as John Marshall, the first John Marshall Harlan, and Hugo Black.
The idea that constitutional interpretation should start with the text of the Constitution is so obvious as to seem banal. There is almost universal agreement that constitutional interpretation should “start with the text.” But in the deeply politicized debate over constitutional interpretation and the direction of the Supreme Court, this is often where agreement ends. Many progressive scholars and judges move almost immediately from the recognition of the primacy of text to an assertion that “the text answers very few questions.” At the other extreme, Justice Antonin Scalia has claimed that judging is “easy as pie” because the text almost always yields a definitively right answer. CAC believes the truth lies between these two positions. Many constitutional controversies can and should end with a careful review of the words of the Constitution. In every case, we think wisdom can be found in a careful review of the Constitution’s text.
Honest textualism is not “easy as pie” because of the nature of our founding document. Words and phrases like checks and balances, separation of powers, and federalism never appear in the Constitution’s text, yet every grade school child in America learns that these are bedrock principles enshrined in our Constitution. A modern reader of the Constitution will find it jarring to stumble upon the words “three-fifths of all other Persons” still prominently placed in Article 1, Section II of the Constitution. The reader must continue until very near the end of the document to amendments that excise this shameful language from our nation’s charter. Honest textualism requires a careful consideration of the words, patterns, and structure of the entire document, including the amendments.
Honest textualism thus differs sharply from what some politicians like to call “strict construction.” The Constitution was written to endure for the ages. A number of the most important provisions in the Constitution are purposely written in general terms: e.g., due process of law, unreasonable searches and seizures, cruel and unusual punishments. To be faithful to the text, judges must be faithful to the principles captured by these general phrases and do their best to apply them to present circumstances. Chief Justice Marshall put it best in insisting that “[w]e must never forget that it is a Constitution we are expounding.”
Textualism also should be distinguished from originalism, at least as that term is sometimes employed by conservatives. One version of originalism insists that the intent or expectations of the individuals who drafted and ratified the document control the outcome of cases. This elevates expectations over text. For textualists, what matters most is what the actual text means, not how one group of people expected the language to be applied at a particular time. These expectations might shed light on what the text means, as explained below, but they alone cannot be controlling.
While history cannot trump text, historical sources such as the Federalist Papers can provide critical clues about what specific words meant to the framers and ratifying generation. As important, the best interpretations of the Constitution’s general terms and embedded principles are informed by a careful consideration of historical events that led to the creation of the Constitution and made necessary changes to the document.
For example, it is hard to appreciate the Constitution’s radical-for-its-time idea of popular sovereignty – a government of, by, and for the people – without examining the Revolution and the Declaration of Independence, which tell us what the Patriots were fighting for. It is impossible to fully understand major changes to our Constitution passed after the Civil War without studying that War and the Gettysburg Address, which describes the more perfect union and the rebirth of freedom the 13th, 14th and 15th Amendments provided for our nation.
CAC believes that our nation’s constitutional history is, in its most vital respects, a progressive story. The Constitution was written by revolutionaries and amended by those who prevailed in the most tumultuous social upheavals in our nation’s history – the Reconstruction Republicans after the Civil War, the Progressives and the women’s vote movements in the early 20th Century, the Civil Rights and student movements in the 1950s and 1960s. The historical origin of our constitutional text tells us a great deal about the timeless principles that our Constitution enshrines.
We call this careful review of history for evidence of original meaning and insight about constitutional concepts “principled originalism.” Combined, honest textualism and principled originalism -- text and history -- constitute CAC’s method and form the essential foundation for assessing constitutional accountability.
For more on CAC's approach to constitutional interpretation, read this report written for CAC by Professor James E. Ryan of the University of Virginia School of Law, entitled, “Laying Claim to the Constitution: The Promise of New Textualism,” here.