The Case for Textualism

When it comes to the interpretation of the United States Constitution, there are two schools. One school is called Textualism and the other Living Constitutionalism. The first argues that the original intent, and the exact written words, should be what is adhered to. The latter believes that there were horses, buggies, and muskets when it was written and the meaning should evolve with the times. Here is my argument against the latter theory.

Imagine that your Uncle Edgar died recently (God rest his soul and all that stuff). During Uncle Edgar’s will reading, you realize the document had not been amended or changed in fifty years. During the last ten years of Uncle Edgar’s life, your cousin Sissy nursed him, wiped his ass, and paid his bills. He never amended that will. Sissy is disappointed, but the will is the will. Your cousin Esther, instead, gets more than Sissy does. And she didn’t even wipe his butt or pay his cable! I know, your initial response would be to say it’s baloney. But imagine if you were Esther who took care of him for the first forty years. There are two sides to every story and, more importantly, one interpretation to every document.

During the 1990’s I was the manager of a small, 12-unit walk-up apartment building in Beverly Hills. We had two tenants whose leases were signed decades prior, and their rent was legally held at a fraction of what the other units went for. No kidding. While new tenants were paying more than one thousand per month, these two people were paying a few hundred. This is an example of rent control. If the concept of a ‘living document’ came into play, the landlord could have legitimately argued that these tenants pay market price because the text was outdated and should ‘get with the times.’ But, instead, the law dictated that the landlord must adhere to the lease which was signed by both parties many years prior. Due to this adherence, both tenants lived out their lives peacefully in their units without the fear of being priced out onto the streets.

Now, imagine if you will, a contract that you sign with a business partner. Ten years go by and the partner begins to move away from the terms upon which you once agreed. When you approach him/her, they respond quite quickly that technology had changed and your contract (or certain clauses within it) had become irrelevant. But you disagree with their assessment because you have a written contract that has very specific wording. Where do you go? To the document you signed? Or a social contract described by people you do not know?

Here is where textualism (or originalism) comes in. No matter what the so-called ‘times’ bring, we can always go back to the written word. The written word cannot change. Ideas can. If we agree with an idea that the document should be changed, then we write up an amendment, both sign it, then add it to the document. Right? This is how the U.S. Constitution was created and still operates. Like any other contract.

The reason I argue so vehemently against the ‘living document’ stance is that I believe that everyone should be able to read what it is that we agree upon and not be worried that some court will change it. Everyone agrees that the textualist stance applies when it comes to every other contract that we sign (no matter how much time flies afterward). Why believe that a contract can change based on an abstract concept or that outside influence could change it because a majority crowd says it’s irrelevant? To me, that means no contract could or should be held to account. None. Any. Ever. In other words, anyone who believes in the ‘living document’ theory can’t hold anyone to account based on the fact that it changes with the ideas of the citizens’ whims.

The way the U.S. Constitution works is that an amendment must be approved by two thirds of Congress. That means 287 people in the House and 67 members of the Senate must approve. Then the President must sign as well. This means that changes to the original agreement must go through a rigorous process before becoming a part of permanent law.

So changes to the contract can be universal, and not decided by a small body of nine justices. Text is king, not one person, or even nine. The more justices up and down the line that believe in textualism, the more we can predict the outcome of the case, and defy activism. Whatever is written is truth. If we want to change things, we know how to do it.