Originalism and Going Outside the Text

Over at the Originalism Blog, Mike Ramsey discusses Stanley Fish’s review of Akhil Amar’s new book America’s Unwritten Constitution.  Fish states:

… Amar’s main thesis [is] “The written Constitution cannot work as intended without something outside of it — America’s unwritten Constitution — to fill its gaps and stabilize its meaning.” The meaning of the “inside” — the text’s literal words—cannot be specified independently of the “outside” — the set of assumptions and values that hangs over the enterprise and gives the deeds and words that occur within it shape and point. The text may not enumerate those assumptions and values, but, explains Amar, they “go without saying,” and because they go without saying the words that are said receive their meaning from them. “The unwritten Constitution … helps make sense of the text,” a sense that would not be available if an interpreter were confined to a “clause-bound literalism.”…

What are the implications of Amar’s argument? Well, one implication, which he draws out, is that textualism or clause-bound literalism of the kind championed by Justice Antonin Scalia is a nonstarter. Not going outside the text leaves the text a document profoundly unresponsive to our goals and aspirations because our goals and aspirations — the huge number of unwritten ones — have been edited out.

I was planning to write something about Fish’s discussion, but Ramsey beat me to the punch and said what I was going to say.  But I do want to add one point.

The basic response to Fish is that he is attacking a straw man: Scalia certainly believes that one must go outside the text to understand the meaning of the text.  The question is in what way one may go outside the text.  As Mike Ramsey says:

Text-based originalism does insist on two core points that may well be in tension with Amar’s project: (1) the background assumptions that give meaning to the text are those of the time in which the text was written, not some other time; and (2) the project of interpretation is to use those background assumptions to give meaning to particular language in the text, not to leverage the background assumptions into rules that the text does not contain.  Neither of these, though, entails “not going outside the text.”  They do make text-based originalism “clause bound” in a sense, but not in the sense Professor Fish seems to mean.

Not only do I think that Mike is correct here, but I think this is something that virtually all original public meaning originalists (or, as Mike puts it, text-based originalists) would agree to.  I often find myself disagreeing with originalists on all sorts of issues.  But there are some issues where originalists agree and this tells us something about the core of originalism.  On the point that Professors Fish and Amar raise – bringing in material from outside the text – I believe that there is this consensus.

Originalists do disagree about other closely related matters, but that disagreement does not undermine this consensus.  For example, Jack Balkin believes that the Constitution’s original meaning is very limited, even minimal.  When the Constitution is applied, he believes that this minimal meaning is supplemented by constructions of the language supplied by social movements, who convince judges and other relevant actors how the Constitution should be read.  In contrast, I believe that the original meaning is much thicker than Jack thinks it is and therefore regard many of the constructions that Jack regard as permissible as impermissible departures from the original meaning.  Despite this disagreement, I still believe,  based on my reading of Jack’s work, that Jack would agree with the two points above: Jack would agree that one must go outside the text to determine the Constitution’s minimal meaning and that one should not claim that background assumptions are part of that minimal original meaning when they are not fairly read as such.

I have purchased Akhil’s book, but have not started reading it yet.  One of my principal concerns will be to evaluate to what extent his arguments for the Unwritten Constitution respect this important consensus.

Update: I added some material to post to make it clearer for people who had not read the reference post by Mike Ramsey.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on October 13, 2012 at 00:41:00 am

I have lost interest in the B$ spouted by Stanley Fish, Akhil Amar, Jack Balkin, and their little dog Toto. They are simply fluffers for the socialist regime that has disregarded the Constitution since Roosevelt's coup d'etat in the 1930s.

The time has come to ignore those jerks and to work out what a government that followed the Constitution would look like and what post-"progressive" law will be. Hint, chuck the con law theories and your administrative law text.

read full comment
Image of Walter Sobchak
Walter Sobchak
on October 11, 2020 at 11:32:26 am

Originalism owes more to Judge Scalia than to Judge Thomas, who is probably the better historian. Judge Scalia was a law professor at the University of Chicago. He remarked afterward in a return visit that only two or three schools that proved to be intellectually stimulating, Harvard and Chicago were two and another he could not remember. The Law School Record reported his visits back to the school and how his Originalism developed from the ideas of the undergraduate curriculum at the University of Chicago.
The curriculum was only to read original documents, whether in the sciences, humanities, or the fields of history. Three years of each subject were feasted on by East Coast students at a Baptist School with professors teaching Thomism. I believe Judge Scalia picked his underlying themes of finding original documents to come to one’s conclusions as to the actions which propelled him to the Court of Appeals during his tenure at the law school. My experience on reading the cases of Judge Thomas and talking to Holy Cross graduates is that strong didactic courses in history were the norm. Maybe one can learn something about a liberal college curriculum applicable to any profession later in life. For me this is one of the takeaways from the home of college free speech at the University of Chicago.

read full comment

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.