One often finds more radical views among defenders of tradition these days than the average member of the faculty: who is really defending the status quo?
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.