Team Brennan: Textualism v. Contemporary Ratification

During a class discussion on the interpretation of the Constitution, a student humorously stated that as long as the Supreme Court’s decisions were in alignment with their own views, then the process of how the Court came to that decision didn’t matter.  However, just like in sports, your team is not always going to win; meaning that the how of interpretation is just as important, if not more, than they actual decision itself.  Justice Antonin Scalia in his book A Matter of Interpretation even argues that, as a whole, the American judicial branch has “no intelligible theory” on the process of interpretation.

In my opinion, this is a bit of an exaggeration, as there are many theories of interpretation.  I think that Scalia’s main beef is more about the consistency of interpretation, with textualism being the somehow obvious theory of choice.  Strong proponents of textualism, such as Scalia, argue that interpreting the Constitution is simple.  If ever an issue should arise as to the constitutionality of a statute, a judge would simply read the statute, presumably understand what it means, cross reference it to the Constitution, presumably understanding what that means, and said statute would either receive a ‘yay’ or a ‘nay.’  As stated by Scalia, interpretation by textualism takes the judge out of the decision, which disallows power grabs by judges to create court legislation.  “…I think [common law] frustrates the whole purpose of a written constitution.”


However, this vastly oversimplifies the 8,000 word United States Constitution. While there are some very specific sections of the Constitution, it often ambiguous and can, at times, embrace generalizations.  One example would be the freedom of speech and the recent Citizen’s United case.  The Supreme Court found that the 1st Amendment provides corporations the ability to spend limitlessly in political elections as it is a form of speech.  Another example, the word use: In Scalia’s book, he mentions a case a statute gave an extended punitive penalty if arms were used in the purchase of illicit drugs.   The defendant used a gun as barter for the purchase of illicit drugs.  The Court found that this use fell under the jurisdiction of the statute and the defendant would therefore receive the extended amount of prison time. Scalia dissented, saying that the use of a gun is clearly defined for what it was intended to do, i.e. shoot and kill.  I, personally, agree with Scalia with this, although I do think that Scalia is breaking his own rules of textualism in this case.  I believe he was looking at the intentions of the legislature, which is something that Scalia actually argues against doing.


Justice William Brennan Jr. also finds flaw in exclusive textualism.  He argues that if textualism is exclusively used, than important substantive cases would be both ignored and dismissed by the Courts, even if the law at question led to the tyranny of the majority.  “Unabashed enshrinement of majority will would permit the imposition of a social caste system or wholesale confiscation of property so long as a majority of the authorized legislature do by, fairly elected, approve.” Scalia also admits to this flaw of textualism, however he embraces it, saying that it is not the judge’s place to decide if laws, created by elected officials, are foolish or not.  This even abates the counter-majoritarian problem, in that the appointed, i.e. unelected, Supreme Court justices would not create legislations, leaving law making to the elected representatives of the people, the Congress.

I again disagree with Scalia on this.  First, I don’t believe that there was ever a counter-majoritarian problem to begin with.  Justices are appointed by an electorally voted president, and then confirmed by direct elected representatives of legislature.  I actually think it is a good thing that justices cannot be changed by campaigning.  However, while the counter-majoritarian problem is solved in Scalia’s eyes, an even larger issue remains.  Progress and social change would be virtually impossible if textualism was the exclusive theory of interpretation.  Brennan argued that the continual change in societal needs and relationships will over time render textualism ineffective.  The judiciary must interpret the Constitution in the present, with their contemporary mindsets, to promote human dignity in light of society’s changing values and needs.

An example is the developed right to privacy.  While this right is not explicitly stated in the Constitution, it is implied in the Due Process Clause of the 14th Amendment as established by Griswold v. Connecticut in 1965.  However, in 1986, the Court decided to revert back to textualism instead of contemporary ratification in Bowers v. Hardwick.  By using textualism, the Court ignored the changing of societial needs and relationships, thereby throwing human dignity to the wind.  The result was a hypocritical restriction on the right to privacy in the name of homophobia, with the case being overturned in 2003.
In conclusion, to even pretend that a judge can totally take themselves out of the act of interpreting is a unrealistic, as seen from a textualist perspective:

To in·ter·pret [in-tur-prit] verb 

1. to give or provide the meaning of; explain; explicate; elucidate: to interpret the hidden meaning of a parable.

2. to construe or understand in a particular way: to interpret a reply as favorable.

3. to bring out the meaning of (a dramatic work, music, etc.) by performance or execution.

4. to perform or render (a song, role in a play, etc.) according to one’s own understanding or sensitivity: The actor interpreted Lear as a weak, pitiful old man.

5. to translate orally.

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14 Responses to Team Brennan: Textualism v. Contemporary Ratification

  1. aussielandmn says:

    I think you hit the nail on the head when it comes to the debate over either using a common law system and a civil law system. A civil law system is much more rigid and based upon statute, thus clearing defining when one is in or outside the legal code. Also it relies upon textualism to take the individual morals and political beliefs of the judge out of the equation and simply look at what the statute. Thus that eliminates the tricky, vague way in which non-democratically elected judges can effectively tell a democratically elected government where the limits of their legislative and executive power begin and end. However, the civil law system is not very flexible and heavily relies the actions of government which according to one’s political beliefs can be slightly complicated or very bad. It certainly does at least raise the question of the tyranny of the majority. In addition, because the Civil Law relies on textualism which can be slow to respond to the problems of a modern society. The common law system is much more judge and case centric. This allows for much more flexibility within the law and gets rid of the potentially sticky and complicated actions of our politicians. In addition, it creates a long line of legal precedent. Also the interpretation of judges can potentially safeguard us from a possibly tyranny of the majority. However, again this creates the complicated conundrum in which we have our legal elite telling our political representation where they power begins and ends. Which in turn raises the question as to who our judges are and what power the people should have over.
    I do agree with you overall. I do belief the system of contemporary ratification is much better for the common law system. It allows for a more flexible interpretation of the law which is important when dealing with statutes or cases that are sometimes, two, three or four hundred years old. Evidence of this can be seen the recent health care and privacy debates that have raged in the supreme court. However, while this should be the case, I would argue that an eye should be kept on what the spirit of the law is.

    • elason13 says:

      You mentioned the legal precedent that is set by the judicial branch and I just wanted to expand on that. Scalia mentioned that stare decisis is potentionally dangerous, especially if the mode of interpretation isn’t textualism, because it can mutate the law to look like nothing it was originally meant to protect or restrain. In my mind, it’s a bit like the game Telephone, where everyone sits in a circle and whispers a secret word from person to person. Typically the result is way off the original secret message. This definitely can be an issue, as this legal precedent is binding to lower courts. However, the Supreme Court still has the ability to overturn stare decisis so I feel that this legal precedent isn’t as awful as Scalia makes it out to be.

  2. haleyschryver says:

    I agree with you that there is no way for judges to remove themselves from their interpretation of the Constitution. You gave a very good example of how even Scalia who is a hardcore textualist (or so he says) inserted his own meaning and experiences when looking at what constitutes the “use” of a gun. There is no way to simply look at the text and give a yes or no answer when words can have so many different meanings. It is especially difficult since the Constitution is both extremely precise and extremely vague at the same time. It seems impossible to simply go by what the text says without a little interpretation, but at the same time, too much interpretation would put meaning that shouldn’t be there. There be some form of balance between the two, but it will be difficult for people to agree on how much balance there should be.

    • elason13 says:

      Actually there is a theory that I came across that looks like is the best of both worlds, called New Textualism. I am not 100% positive of all it entails so I didn’t want to post about it. From what I know, though, it still uses textualism but it recognizes that this way of interpreting alone is not enough. It puts the mind of the judge back into the theory, allowing room for the essential penumbra surrounding the Constitution.

    • rubit91 says:

      I agree with both of you. Through the readings we have had, it shows that judges and people overall interpret the Constitution in their own words and beliefs. All cases are different. Every word has a variety of meanings. Therefore, I believe that the verdict of cases should not be determined by previous cases.

      • austill1991 says:

        I agree with rubit91. Although the various justices seem to advocate textualism, originalism, or even the idea of a dynamic constitution, they all seem to act, not out of constitutional ideology, but instead out of their own interpretations. For instance when looking at the opinions of Bowers v. Hardwick (which ruled against the right to privacy in the case of sodomy) and the opinions in Griswold v. Connecticut and Roe v. Wade, they cite many of the same preceding cases, but came to different conclusions. In the end I believe it has more to do with which justices are in the majority at the time when the court decisions are made.

  3. Ok i have tried to comment 4 times but my browser keeps screwing up so ill keep this short. I disagree that he is departing from textualism. Suppose i beat someone up with my car door. Is that vehicular assault or regular assault? Now suppose the car door is not attached to my car anymore. Is it still the same thing? Vehicular assault is what non lethal DUI’s are categorized as. Are they really in the same ballpark? I say no.Brennan was defining “use” as apply towards intended purpose. What if it were drugs used instead of a gun? Would he be considered to be using or “Under the influence” of the drugs, not simply in possession of them? Brennan’s point is that it is a slippery slope to go down flipping the meaning of words when it suits your purpose at any given time.

    • elason13 says:

      I think you mean Scalia when you said Brennan… But, either way, if contemporary ratification is properly used, based on the Constitution to promote human dignity, than I do not think there is a huge issue of it being a slippery slope. Justice Brennan is an excellent example of this. This theory was Brennan’s baby, so to speak, and he has come to be known as one of the most influencial liberals because of it. For example: 1. In his real life, he was an avid Catholic. To promote human dignity, though, he set aside his personal beliefs on reproductive rights and decided pro-abortion. 2. Even while discriminating against women employees himself, he promoted women’s equality rights in the Court. 3. In the case Bowers v. Harwick, Brennan was one of the few who dissented. He recognized in this case both the loss of human dignity and privacy rights.

      Again, that’s IF contemporary ratification is used properly. Even highly educated, for-the-greater-good judges can become power hungry, and that is why I totally disagree with appointing life terms for judges. Working until you die should be left to the Pope (even though he just resigned, so maybe that’s not a good example).

  4. aussielandmn says:


    I would argue that your example is more assault with a deadly weapon, as a regular assault charge doesn’t do it justice and as far as I know a person needs to be operating or driving a vehicle in order for it be considered vehicular assault, not just using part of the vehicle. While I do agree with you there is a slippery slope argument to contemporary ratification I believe that it does allow our courts to have more flexibility within the system. Not every situation that comes up in a courtroom will have been written down in statute and could never possibly be. I think that this system more allows for judges to properly weight the facts and provide equity or justice to those wronged.

  5. theginja says:

    “Progress and social change would be virtually impossible if textualism was the exclusive theory of interpretation.”

    Respectfully, I must disagree with this assertion. I don’t think that a ‘static’ interpretation of the constitution would stifle societal growth at all, in fact I think a static interpretation would actually encourage growth, insomuch that it wouldn’t be an insurmountable barrier to it. As an advocate for a static interpretation, I hold to the rather alternative view that textualists, and originalists have simply been doing it wrong the whole time! If I can elaborate, I’d like to borrow from our beloved Justice Brennan, “this text marks the metes and bounds of official authority and individual autonomy.” So, to a textualist (not in Scalia’s mold obviously) the government, in particular congress (who make the law) has no power outside of what is granted to them in the constitution. And the constitution very specifically enumerates the powers that are granted to them, all 18 of them (not a lot). Any law or statute that goes beyond what is listed in Article I of the constitution is simply unconstitutional on the ground that the government never had the authority to create said law. Since these powers are enumerated and limited, it would take a dynamic approach to justify any law that extends beyond the confines of the text. A true static interpretation would result in a truly limited federal government (and post-reconstruction, state as well). It is in this limited capacity, that the government would not be large enough to stifle societal growth.

    So, in contrast I would say that only by taking a dynamic approach to what was originally a limiting text, can laws that stifle freedom, liberty, and expression be created. And it is these laws that hinder social change, and neuter the progress that a society comprised of free individuals can achieve.

    • horboy80 says:

      I like where your going with your post and agree that if the current regime we have in our federal and state governments would actually go back and look at their duties listed, they would see that many of our current laws and regulations should not have been enacted in the first place. However, any chance of that actually happening is extremely low and I will not be holding my breath.
      I do have a take on textualism that I thought could be fun though. If we go back to the idea that the Constitution is our nations Bible, and we look at the 10 Commandments in a purely textualist way, we will see that simply looking at the text will not work. Interpretation is not only beneficial to social progress but in fact is necessary.
      “Thou shall not kill”. Seems pretty straight forward right? No killing. Period. However, we as a society do not arrest someone who kills another individual in self-defense or if they were protecting an innocent. In fact we praise them. Most of our nation celebrates our soldiers. They are sometimes forced to take a life in battle but we don’t condemn them to eternal damnation. No, we call them brave and honorable .
      So it kind of seems our interpretation of “Thou shall not kill” has turned into “Thou shall not kill UNLESS . . . ”
      This interpretation is what is needed in our nation. I’m finding the more I learn about the men who founded our country the more I am amazed by them. That ambiguity that is in the Constitution ensures that we as a society have discourse on controversial subjects. It keeps the conversation alive which in turn allows us as a people to evolve and grow. Without some of those generalities we would no longer need to talk to each other and we could quit trying to better our nation. Even if the Founders did not intend for this happy accident, the unintended consequence of their ambiguity has allowed our nation to develop, not always for the better mind you, and I’m looking forward to the future and seeing what’s next.

  6. elason13 says:

    I appreciate your respectful disagreement.
    And I usually know better than to write hard to defend statements like that.
    I will correct it to: “Progress and social change would be sluggish if textualism was the exclusive theory of interpretation.”

    Anyway, I think where you and I differ is that you believe society promotes social progress and freedoms whereas I believe society constricts social progress and freedoms, although not strictly speaking. If we were to live in the type of world you are envisioning, where society promotes itself, than I would completely agree with you. A truly textualist approach in a extremely limited government would be best.

    However, we don’t live there. We live in a crowded world full of violence and inequalities. As long as people continue to have the desire to consume, never being content, I believe these issues will always persist. Therefore, in my mind, we need a government that will protect the people from each other, other countries, and from large corporations.

    Example: Women gained the vote in 1920. Most of the progress for women’s equality was gained from that point until the mid ’70s. Why? Because the government at that time embraced liberalism and helped to push for that change, albeit unenthusiastically. It wasn’t until neoliberalism came to be widely accepted that the social progress of women’s rights stymied.

  7. newbieblogster13 says:

    I agree with your conclusion that judges can not take themselves out of interpreting the law. Even those who claim they are textualists use some form of interpretation to decide what a meaning of a law means. The example you used was perfect with the use of the gun. Antonin Scalia believed the law meant using the gun for the purpose of firing at another person rather than using it as a trade. That right there was an example of him trying to interpret what the legislators meant. He did not know what they originally intended and so he had to interpret what they meant by adding his own definition of the word “use.”

  8. yesdelrinc says:

    I agree with your stance. It seems to me that we are always, especially Supreme Court Justices, interpreting everything. When we approach texts, especially the Constitution, we attempt to make meaning out of them. Therefore, I believe that the student who made that comment in your class is incorrect. The manner in which one interprets directly implicates the outcome. When we interpret, we bring our culture, experiences, and circumstances to mind to help us make sense out of something. Thus, we can never escape the direct correlation between how one interprets and what the interpretation is.

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