Reading the Constitution: Why I Chose Pragmatism, Not Textualism

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This book is dedicated to my colleagues on the Court: CJ Rehnquist, John, Sandra, Nino, Tony, David, Clarence, Ruth, CJ Roberts, Sam, Sonia, Elena, Neil, Brett, and Amy

Do not explain your philosophy. Embody it.

—Epictetus

PREFACE

MY WAY

For forty-one years I have worked (for thirteen years) as a federal court of appeals judge and (for twenty-eight years) as a Justice of the United States Supreme Court. My job was interpreting statutes—that is, laws—and the Constitution. On the court of appeals, I reviewed the decisions of trial courts, and on the Supreme Court I reviewed the decisions of courts of appeals and state supreme courts. My work, like that of almost all federal appellate judges, has consisted primarily of reading documents and helping to decide what they mean and how they apply to facts before the Court in a particular case. Unlike trial court judges, who hear cases for the first time, appellate judges do not try cases and rarely review new evidence. Appellate judges are most often concerned with making sure that trial courts correctly interpreted and applied the law to the facts of the cases in front of them.

When I explain to a class of middle school students the nature of an appellate judge’s job, I use an example drawn from a story I read in a French newspaper. A high school biology teacher was traveling on a train from Nantes to Paris. She had with her, in a wicker basket, twenty live snails. The train conductor asked her what was in the basket; she told him; and the conductor then said, You must buy a ticket for the snails. That’s ridiculous, the teacher replied. Well, said the conductor, read the fare rules. They say, ‘Passengers cannot bring animals on the train except in a basket, in which case they must buy a ticket for the animals.’ But, protested the teacher, it means dogs or cats or perhaps rabbits, not snails. Doesn’t it say ‘animals,’ said the conductor, and isn’t a snail an animal?

At this point I ask the class: Who is right? The class breaks up into fierce argument. What about mosquitoes? says one. Why would they want you to pay for snails? asks another. But isn’t a snail an animal? says a third. I add, There you have the interpretive job of an appellate judge. How do we find the ‘right’ answer?

An appellate judge is unlikely to have to decide a case about train fares and snails. But the judge will often have to answer questions that take the same general form as the snail example. Do the words endangered species in a law apply to species of birds not known when Congress enacted the law? Does the Second Amendment’s phrase keep and bear arms protect the right of individual citizens to keep a firearm in the home to protect against robbery? Questions of that form will often lead a judge to ask what, in general, is the best way to go about finding an answer.

In recent years, many scholars who write about judging and many judges themselves have emphasized the role of text in answering this kind of question. Many now say that judges should put primary weight, perhaps exclusive weight, on the text of the statute, as understood by an ordinary person. Indeed, one of my Supreme Court colleagues recently said (perhaps tongue in cheek) We’re all textualists now.¹

But I am not.

Without ignoring the text, I normally put more weight on the statute’s purposes and the consequences to which a particular interpretation will likely lead. I will sometimes ask how a (hypothetical) reasonable legislator would have interpreted the statute in light of its purposes. And I will sometimes examine the legislative history of a statute in order to answer these questions. I will approach and understand broad statutory or constitutional phrases in light of the values that underlie them—including notions of due process of law. I have, for example, argued that the Constitution in certain circumstances permits those who wish to exhibit monuments of the Ten Commandments to do so. The State of Texas exhibited a Ten Commandments monument on its state capitol grounds; the monument was attacked on the ground that it violated the Constitution’s Establishment Clause, which forbids government from favoring or to some degree supporting religion. I thought that the clause did not forbid maintaining that particular monument, largely because it had been there for a long time without controversy. Given the monument’s longevity, I feared that a contrary interpretation that required it to be taken down would produce friction and hostility among different religious groups—the kind of conflict that the Constitution seeks to prevent.²

And I have argued in favor of a flexible interpretation of certain procedural statutes, for example, a statute that limited the time a state prisoner could ask a federal judge to review his conviction. I thought the courts should have the power to extend that limited time so that the law would ensure—consistent with Congress’s intent—that those convicted of state crimes will have an opportunity to obtain a federal judge’s review of their state conviction.³

That is not to say my purpose-oriented approach is merely a matter of choosing which outcome I believe to be best in any given case. I have, for instance, sided with a majority of the Court in affirming a death penalty sentence I believed undesirable and in denying the ability of an incarcerated person to bring a claim in federal court.⁴

I did so not because I believed those outcomes best as a matter of policy. I did so because, in both instances, Congress had established legislation whose aims demanded that outcome. (It told the federal judge, for example, to leave in place a state court decision unless the state decision was contrary to or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court).⁵

But by considering purposes, consequences, and values, I place less weight on the so-called plain meaning of a statute or the Constitution than do many of my textualist colleagues. And I do so to arrive at an interpretation that is more faithful to the desire of the Constitution’s Framers to establish a workable framework for long-lasting government. The Constitution sets forth a structure and principles that aim to create and hold us together as a single nation for hundreds of years or more. I have approached the interpretive task with that fundamental objective in mind.

How have I come to my views? Like most of us, I am in part a product of my family background. I grew up in San Francisco in the late 1940s and 1950s. My father was the legal advisor to the San Francisco Board of Education for forty years. (I wear his retirement watch.) He was wise, kind, and always interested in the life of the city. He used to say that, to work for the school board, you had to know the answer to a question about geography: Where is City Hall? He also taught me a few basic lessons, including to stay on the payroll, do your job well and you will benefit (from satisfaction) even if you aren’t promoted, and to listen to others. And he loved working with others from the city’s many different neighborhoods and communities to produce, in his words, a "better education for all the children."

My mother participated in various civic associations, such as the League of Women Voters, the United Nations Association, and several political campaigns. It is not surprising that words such as community, organization, cooperation, and civic life have a positive association in my mind and in that of my brother (who is a federal trial court judge in San Francisco). Nor is it surprising that we would see law as an institution that, in part, seeks to make it easier for people to live together productively and freely in their communities.

My legal career reinforced these views. I was lucky. My first job after graduating from law school was working as a law clerk for Supreme Court Justice Arthur Goldberg. He was a practical man, and he saw law as a practical enterprise. His favorite quotation was from Shakespeare: The time of life is short! / To spend that shortness basely were too long / If life did ride upon a dial’s point, / Still ending at the arrival of an hour.⁶

I worked too for Archibald Cox when he ran the Watergate Special Prosecution Force. He was an intelligent, competent, and above all, completely honest civil servant. And I twice worked in the Senate for Senator Ted Kennedy. The first time, I organized and ran a set of subcommittee hearings on airline regulation. The second time, I served as chief counsel of the Senate Committee on the Judiciary (Senator Kennedy was the chairman). The senator firmly believed that most senators, including senators of different parties, had in common the fact that they hoped to achieve a better America—though they often had different ideas of just what that better America might be. His object: work together with those who agree and those who disagree to produce a result that will benefit Americans. These jobs helped me associate law with honesty and with working together toward practical and beneficial goals.

The views I take about interpreting law also reflect those of my law school professors, for example, Henry Hart, Albert Sacks, and Lon Fuller. Each of these professors was an expert on interpreting the law. Lon Fuller taught and wrote about jurisprudence, the philosophy of law. Henry Hart taught about federal courts and wrote a famous book on that subject. Albert Sacks was his collaborator and later dean of Harvard Law School. Each of them viewed interpretation as a search for an outcome that was faithful to the objectives of the legislators who enacted it, and would rely on a wide range of interpretive tools to get there. Their approaches, in turn, reflect those that Chief Justice John Marshall set forth in McCulloch v. Maryland. In that case, the Chief Justice explains that "it is a Constitution" that we are interpreting and that Constitution is designed to create a workable system of government that is to last for decades, perhaps centuries. I shall discuss the case later at some length.⁷

They are traditional views in that many eighteenth- and nineteenth-century judges used those approaches when interpreting difficult statutory (or constitutional) phrases.

Twentieth-century judges used them, too. Those judges include such luminaries as Justices Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, and Felix Frankfurter. Justice Cardozo’s book The Nature of the Judicial Process instructs a judge first to look to see whether a definite rule or precedent requires a particular decision in the case at issue.⁸

If not, the judge will look to the history of that case, asking precisely why the issue it presents has come before the court, and consider traditional ways of handling that issue. And the judge will want to know if a contemplated decision will conform to prevailing notions of fairness and sound public policy.⁹

Similarly, Justice Frankfurter wrote that legislation (and I would add the Constitution, too) has an aim: [I]t seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy.¹⁰

And Justice Holmes made clear that a law’s general purpose is a more important aid to judicial reasoning than any rule which grammar or formal logic may lay down.¹¹

Each of these judges approached statutory interpretation with purposes, consequences, and values front of mind.

If my approach to interpreting the law is traditional, as I think it is, then why am I writing this book? The reason lies in the growth and popularity among many judges, lawyers, and others in the legal community of an approach to interpretation that is, or may become, very different. When interpreting a text, every judge will read that text and will recognize that, at the least, its words limit the scope of a proper interpretation. The word fish in a statute does not mean fowl. But some judges adopt a form of interpretation, sometimes called textualism, which in many difficult cases places more interpretive weight upon the text (or in some circumstances, other linguistic considerations that supplement the text) than I believe, and others have long believed, is appropriate.¹²

Those following textualism will often prioritize the so-called original public meaning of words, which is the meaning that an ordinary speaker of English would attribute to those words at the time they were written. In constitutional cases, this approach leads to the interpretive method called originalism, which will try to put determinative weight upon the meaning given a constitutional text by the Constitution’s Founders or by their contemporaries.¹³

Those following a textualist or originalist view of interpretation may ask only a handful of closely related questions, including, for example: What do the words of the statute or the Constitution literally mean?¹⁴

What did their authors linguistically mean or what did the public take the words to mean at the time Congress enacted the statute or the states adopted the Constitution?¹⁵

Of course, a judge must consult the text and understand the text as limiting or helping to explain the scope of the statutory phrase. But I have learned over and over again that text is but one interpretive tool among many. And I fear the current enthusiasm for widespread adoption of more purely textual or linguistic approaches to interpretation means that other equally or more important tools will be set aside. It is as if an artist were to try to paint with only half a palette.

As the examples I provide in Parts II and III will show, this trend in statutory and constitutional interpretation may make more difficult (or may seriously undercut) the law’s ability to achieve its basic objectives. It underestimates the difficulty of writing legal phrases with more than proximate precision.¹⁶

It wrongly treats many of those phrases as statements describing the world rather than as words that perform (often technical) legal functions.¹⁷

It may make it more difficult for the legislator to perform a constitutionally delegated legislative function.¹⁸

It may increase the difficulty for the public to hold legislators democratically responsible.¹⁹

Purely textual interpretations of statutes may produce undesirable consequences at the expense of more desirable consequences that the statutes’ authors intended. Purely originalist interpretations of the Constitution may create a less workable Constitution, diminishing its ability to hold together over time a nation now of 332 million people seeking to put into practice the Constitution’s democratic, humane values. In addition to these costs, I do not believe that textualism or originalism will achieve their own often articulated objectives: making law more definite and simpler to understand, while avoiding a judge’s temptation to substitute the judge’s own ideas about what is good for what the law in fact demands. I shall explain through examples why I fear these consequences. And I shall illustrate the virtues of what I believe is a more traditional method of interpretation, as well as the pitfalls that lurk beneath a more strictly textualist or originalist method.

In explaining how I interpret statutory and constitutional language, I shall minimize the extent to which I make theoretical arguments. I shall mention, but not dwell upon, the theoretical problems I see, for example, in textualism or the theoretical virtues I find in what some scholars call purposivism (a word that simply describes a purpose-oriented approach to interpretation²⁰

) or legal pragmatism. Many scholars have written at length about these subjects in terms of their academic drawbacks or virtues.²¹

Rather, I shall mostly describe cases in which I have participated—cases that illustrate why, and how, I have used what one might call purpose-oriented or pragmatic approaches. And I shall explain why, in those cases, I have rejected the more textual-based approaches that several of my colleagues have embraced.

I should like to remind the reader that I am, and have been, a working judge. And, I should like the reader to keep in mind how that fact influences the interpretive approach that I have taken.

A judge must make decisions, often fairly quickly, always within a limited time. A judge has no room to dither or try to determine what approach to take where. The matter is to some degree inevitably instinctive. Moreover, an appellate court judge works with colleagues. The judge must take account of their views. And the judge must remember that those whom the decision has affected or will affect are normally far more interested in what a court says than in what an individual member of that court says, no matter how well written (or reasoned) that member’s separate (dissenting or concurring) opinion may be.

Further, a Supreme Court Justice will normally keep in mind the fact that the Supreme Court itself is a special legal institution, not only in that it typically speaks the last word as to the meaning of the Constitution, but also in that it must consider how Americans will understand what the Court is saying and how they will act in response. How far should a Court’s determination extend? What can the Court decide in this case that will help implement the holding (say the unlawfulness of segregation) that it has set forth in earlier cases? To what extent should a judge write an opinion in language that to the reader will seem technical? To what extent can a judge write an opinion that will deliver a message that stretches beyond the law?

In a recent case, for example, the Court had to decide whether a school could suspend an angry cheerleader from a sports team because, outside school hours, she had sent messages from a coffee shop to school classmates with vulgar expressions, such as f**k school.²²

The Court held that the First Amendment protected even the student’s vulgar speech uttered outside class hours. But, in explaining that result, the Court also had to explain why the First Amendment allowed a school to regulate student speech, even some after-school speech, in other circumstances. How did the Court justify its conclusion that the school had gone too far in this particular case? The Court used (among other things) a metaphor and general language to convey a message about the school’s duties as an institution in a democratic society:

The school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the marketplace of ideas. This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism I disapprove of what you say, but I will defend to the death your right to say it.²³

Was this the right language, the right style, the right quotation, the right tone to express the message the Court intended the paragraph to carry?²⁴

No treatise answers questions like these. The language in part reflects the values that a judge holds.

The nature of the Court’s institutional role and just how individual opinions should reflect that role are matters that vary from time to time, from issue to issue, from judge to judge. My Supreme Court predecessor Harry Blackmun told me many years ago, You will find this an unusual assignment. And when, on occasion, he would come by my office (formerly his) for a cup of coffee, he made clear that the practical nature of the job, the openness of the questions, the different views held firmly by different members of the Court, the need to try for compromise, the importance of writing in a way that the general public can understand, all made the job unusual. He was right.

Three more general descriptions of law and judging have influenced the way I approach interpretive questions. The oldest of these comes from Montaigne, written in 1584. In his essay On Experience, he points out that human life itself is far more capacious, filled with far more incidents, subject to more vicissitudes, unexpected and unforeseeable events and consequences, than human beings writing a set of laws could possibly cover. Centuries ago, he warned us against trying to capture the infinite varieties of human experience within the confines of any single set of laws. Referring to the detailed Code of the Roman emperor Justinian, he argued that an effort to do so will lead to a lengthy, complex set of codes, filled with words. And nearly every word will prove to be a potential subject for legal dispute. He argued in favor of lawmakers’ use of standards, approaches, norms, rather than highly detailed codified provisions. He added that he would prefer to live in a country with no laws at all than in France, which, he thought, had far too many.²⁵

Montaigne believed that a legal system had to account for the fact that while the human experience changes, the text of the law does not. One of the great pleasures, and challenges, of being a judge is the task of applying old laws to new circumstances. Who could have imagined, for example, that a man attempting to block the City of Riviera Beach from demolishing its port to make way for a housing development would become part of a dispute in which the city contended that his stationary houseboat, with French doors and flowers decorating the windows, was a vessel subject to admiralty jurisdiction? (He won.)²⁶

And who could have predicted that the ancient writ of habeas corpus would be invoked by military prisoners detained as enemy combatants at a naval base on the tip of Cuba? (They won too.)²⁷

Or that the Privileges and Immunities Clause of the Constitution, which was designed to serve the essential role of fusing the several states into one nation, would two centuries later form the basis of a suit by a Vermont attorney who alleged that New Hampshire’s residency requirements for bar admission discriminated against nonresidents? (She lost.)²⁸

Cases like these are the norm, not the exception. Consequently, judges should heed Montaigne’s wisdom and beware of creating too many detailed black-and-white, clear-cut rules that are broad in application. Such rules give an impression of certainty; one either follows the rule or one does not. But too many general rules set forth in judicial opinions can, when applied throughout a nation, run up against obstacles, cause problems, generate unforeseen consequences, and lead the law away from the basic objective of a statute or constitutional provision. That fact does not mean opinions should not embody broad rules; they will sometimes prove necessary and helpful. But it does mean that judges, through interpretation without adequate thought, can too often go too far too fast. Of course, judges typically must resolve the dispute before them; resolving disputes is one of law’s basic purposes. Regardless, it is experience, not a treatise, that is more likely to help a judge determine whether a decision that resolves a dispute should be written in a broad or narrow way.

Along with experience comes a quality I would call judicial instinct. I would not go as far as the so-called legal realists, who believed that judgments were irreducibly tethered to subjective policymaking. Emblematic of this view is Judge Jerome Frank, who wrote, Judging begins… with a conclusion… and afterwards tries to find premises which will substantiate it.²⁹

It is romance, not practice, to believe that judicial decisions are based on a perspicacious flash termed the ‘judicial hunch,’ ³⁰

and that whatever produces the judge’s hunches makes the law.³¹

Lord Coke’s phrase is closer to the truth when he says that [r]eason is the life of the law.³²

But Holmes is yet closer to what I have found when he writes that it is a fallacy to believe that "the only force at work in the development of the law is logic.… Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment."³³

Law is not science. And high praise for a judge is not praise along the lines of intelligent, hardworking, energetic, or good stylist. It is often a greater compliment to say that a judge’s opinions are sound. And what is a sound opinion? What is a sound judge? One experienced judge writes that the term encompasses certain qualities of mind, such as a sense of proportion,³⁴

an understanding of fit, including the ability to understand the relation between wrong and remedy, a tendency to ask what will happen next, and a gift for finding creative solutions.³⁵

It includes certain qualities of character, namely an ability to gauge in advance the reactions of others, a sense of calm or self-discipline allowing the judge to emphasize reason over emotion, a willingness to make decisions perhaps on incomplete information, an instinct for order, and a seriousness of purpose. These qualities have long been valued in our society. The preface of the Book of Common Prayer speaks of that happy mean between too much stiffness in refusing and too much easiness in admitting variation in things once advisedly established.³⁶

And Thomas Jefferson said of George Washington, His mind was great and powerful, without being of the very first order; his penetration strong, tho’ not so acute as that of a Newton, Bacon or Locke; [but] as far as he saw, no judgment was ever sounder. It was slow in operation, being little aided by invention or imagination, but sure in conclusion.³⁷

Judges aspire to these virtues. They can employ legal approaches that, they hope, will help them along the way. But there is no single approach that sets forth an all-purpose solution. Judge Learned Hand analogized a judge’s work interpreting statutes to that of a musician playing a musical score. He wrote, [T]he meaning of a sentence may be more than that of the separate words, as a melody is more than the notes.³⁸

The musician must remain true to the composer’s creation. Certain approaches will help, but ultimately one must combine them with the performer’s own talents, abilities, and creativity. Approaches, not outcome-determining theories, are, I believe, what we search for when judges perform their judicial interpretive tasks. As Justice Frankfurter once advised, interpreting a statute is not a ritual to be observed by unimaginative adherence to well-worn professional phrases. Instead, [t]he purpose of interpretation being the ascertainment of meaning, every consideration brought to bear for the solution of that problem must be devoted to that end alone.³⁹

The approaches that I believe are traditional will help us when we interpret statutes and constitutional phrases. They fall within a tradition that the Constitution’s Framers saw as highly practical. That tradition sees legal interpretation as an activity that is basically pragmatic, undogmatic, and adaptive. It sees law, including constitutional law, as an untidy body of understandings among groups and institutions, inherited from the past and open to changes, mostly at the edges. It is a tradition that communicates its vision, not through the application of any single theory but through detailed study of cases, institutions, history, and the human needs that underlie them. Its practice requires learning, sensitivity, and dedication.⁴⁰

The opinions I describe in this book will help overall to communicate this vision of the law through thought and analysis, through a degree of aesthetic coherence, and by reflecting an awareness of the variety of the human needs and relationships that have called forth our American institutions.

The approaches that I have just described are often more complex to apply than textualism and originalism. Perhaps what appears to be simpler, what holds out the promise of a single right interpretive answer, what is touted as a way to prevent a judge from substituting what the judge believes is good for the correct legal interpretation—perhaps all this helps account for the fact that textualism and originalism have gained considerable favor among many judges, many legal scholars, and lawyers as well. Sometimes I fear that a tidal wave of nearly pure textualism is just offshore. But experience suggests that interpreting legal phrases must often be more complex than Justice Owen Roberts once suggested, namely that the judicial branch of the government has only one duty; to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.⁴¹

I have written this book in large part to show the reader why that is not so, and why the many promises of textualism and originalism often are not, or cannot be, realized. I do so desiring that the next generation or two of law students will learn about and understand the more traditional approaches to interpretation. In that way, I hope to contribute to the effort to slow the tidal wave.

A word as to style: Judge John Wisdom was one of the great judges of the federal Fifth Circuit, which helped to desegregate the South. When I first became a judge, he told me that when I, as an appellate court judge, received and strongly disagreed with a draft from one of my colleagues, I should sit down and write a strong dissent, not sparing emotion, perhaps containing subtle insults, and certainly complaining fiercely (in language that the reader would notice) about how wrong that decision was. Then, he added, read it, tear it up, throw it in the waste basket, and start again, this time to write a judicial, i.e., a judge’s, dissent. I have tried to follow that stylistic advice generally, and I shall try to do so here.

Much of this book will focus on my experience as a judge interpreting statutes and the Constitution. Because statutory phrases are typically less abstract and more detailed than constitutional phrases, it is more tempting to believe that focusing upon text alone in the statutory context will produce precise answers, permitting less subjective judicial leeway. I intend to show that, in fact, reliance upon textualism will not achieve the advantages for which its users hope and that such reliance instead threatens to produce a less workable legal system. As to the Constitution, I intend to show that similar disadvantages flow from originalism and an approach that often accompanies originalism: a strong preference for creating broad, black-and-white, clear-cut rules. These methods will not help achieve the goals of those who write statutes or those who wrote and adopted the Constitution: to create laws that work well—workable laws—that will in practice help those communities that the laws affect live together peacefully and productively.⁴²

This book’s organization in a general sense mirrors what I often tell students about a career in the law: that career asks you to exercise both your head and your heart. Everyone has a heart; but not everyone has a good head. The first half of the book focuses on statutes and is often technical. It asks the lawyer or judge to use his or her head, i.e., logic and thought, though heart is present too. The second part of the book focuses on the Constitution, and, because values predominate here, one’s heart plays a bigger role (though of course, one’s head matters as well). Metaphorically speaking, the book puts intellectually difficult statutory questions first. What the reader learns there should help the reader understand and evaluate the more value-laden constitutional questions that follow.

The book will proceed in five parts. In Part I, I briefly describe textualism, on the one hand, and the traditional approach of emphasizing purpose (which scholars of the subject almost uniformly call purposivism⁴³

), on the other. I will additionally describe a few reasons why I find textualism and its cousin originalism not very helpful. Part I also briefly summarizes, to a greater extent than the rest of the book, some of the theoretical reasons that scholars have advanced in favor or against particular methods of interpreting statutes and the Constitution.

In Part II, I provide examples of cases requiring judicial interpretation of statutes. I emphasize cases in which I have participated. They will show the reader just how some Justices have followed a textual approach while others have followed a more traditional, purpose-oriented approach. The examples will help the reader understand why, in general, I find the latter approach more likely to help produce a system of workable laws that better achieves the laws’ objectives.

In Part III, I refer to cases that require judges to interpret the Constitution. Again, the cases provide examples in which some Justices have followed a textualist or originalist path; others have emphasized purposes and values. The cases will illustrate why I do not believe that textualism and originalism are desirable methods for interpreting the Constitution. And I shall illustrate and explain why I believe purpose-oriented or value-oriented methods are preferable.

In Part IV, I illustrate the importance and usefulness of recalling that the Founders meant the Constitution to work well perhaps for centuries to come. Chief Justice John Marshall explained that clearly two centuries ago in McCulloch v. Maryland. I shall use examples to show how his notion of constitutional workability can help contemporary judges reach sound decisions in constitutional cases.

Finally, in Part V, I speculate about what will happen next. Have textual methods become too deeply embedded in the judicial enterprise for the more traditional interpretive methods that I describe to win the day? I cannot be certain. But, perhaps this book’s description of other nonexclusive tools of interpretation will help to convince some that they point the way to a better interpretive path.

And, if that better-taken path is ignored? In the ninth century, a group of monks on the Island of Iona, led by Saint Columba, produced the Book of Kells, a beautifully illustrated volume, which one can see to this day at Trinity University in Dublin. There are those who believe that the monks produced this book because they thought a great darkness had fallen over Europe and the Book of Kells could preserve a ray of light. This book is not the Book of Kells, but, in my more pessimistic moments as I write, I think of those monks.⁴⁴

I

PURPOSE VS. TEXTUALISM

Judges have traditionally used a variety of tools to help them determine the proper interpretation of the language of statutes and of the Constitution. These have included text, history, precedent, tradition, purposes, values, and consequences relevant to those purposes.¹

These are not all the interpretive tools a judge might use, and I discuss other related tools below. For now, I repeat the words of Chief Justice Marshall, that [w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived.²

Aside from first reading the text itself, there is no specified rank order among these tools. Which of these many tools proves more helpful depends upon the particular case.

Thus the train conductor in our earlier example (were he a judge interpreting a statute) might ask whether railroad officials, when writing the fare book, really meant the word animals to include all animals, even a chameleon? If not chameleons, why snails? What is the provision’s objective or purpose? What is the mischief it seeks to avoid? To keep larger animals off the train? And, what are the consequences of applying the word to small animals such as hamsters or snails?

Judges have long differed in the importance they tend to attach to some of these tools compared with others. Some judges, when they interpret statutes or the Constitution, place greater weight on the text and related linguistic features.³

Other judges place greater weight on a statutory or constitutional phrase’s purposes.⁴

But experience tells me that all