In contemporary constitutional law, it seems as if any inquiry about where the Constitution falls on a particular point of governmental structure or individual liberty must begin with the meta-question of interpretive method. Two different Supreme Court justices can read the same clause of the Constitution and, using different interpretive approaches, determine that it means two diametrically opposite and mutually exclusive things. At its root, this interpretive schizophrenia is a crisis of definition; we disagree about how to apply the Constitution because we disagree about the kind of thing that it is. Is it merely an outline of governmental structures and functions, devoid of content altogether? Or is it a “living document,” designed to protect an evolving set of “fundamental rights”? Is it something in between?
I don’t have a definitive answer, but I’m intrigued by an argument I ran across lately by federal district court judge Christopher Boyko. In a 2009 article from the Cleveland State Law Review (57 Clev. St. L. Rev. 703), Boyko posits two related claims: (1) that the Constitution is, first and foremost, a legal text, and (2) that its nature as text requires that it be interpreted not in light of some ideological superstructure, but according to the grammatical and syntactical rules of standard written English.
Boyko’s argument in the law review article focuses specifically on Establishment Clause jurisprudence (which he argues ought to be recast, in conjunction with the Free Exercise Clause, as “Religion Clause” jurisprudence), but the reasoning he applies to the First Amendment’s treatment of religion can be applied more broadly, to the Constitution as a whole. While Boyko claims the support of precedent in the form of the recent Supreme Court decision in District of Columbia v. Heller, the real authority behind Boyko’s argument is that of fundamental principle and logical necessity. Boyko spells out his basic premise—that the nature of the Constitution requires what he calls a “grammatical interpretive approach” to its application—as follows:
The Constitution is a legal document. Its text was not composed in haphazard fashion, nor were its terms fortuituously chosen. Its drafters were sober men, of singular purpose, driven from the inception to construct a founding document designed both to eradicate the faults exposed in the British system and to protect against the ascendance of the caprice of tyranny over the rule of law.
The text of the Constitution is then bound unto itself, and the document derives its very authority from text whose meaning is etched into history; whose context, when apparent, dictates application; and whose application, when ambiguous, finds support in the objective meanings attributed to such text, with reference to the understandings of the drafters themselves, from the course of history, and from normative rules of grammar and usage. This textual hermeneutic arises because the words of the Constitution are, by their very declaration, supreme law. In fact, to accept the supremacy of the Constitution (to which all legislative, executive, and judicial members swear an oath of support), one must first accept the presupposition that the Constitution’s text imbues the document with the very authority to grant its proclaimed supremacy. Any other conclusion makes reference to the Constitution secondary, because it improperly, and unnecessarily, binds constitutional text (in the application) to some extrinsic body of law, the making of which thereby subordinates text to judicial agency; the language of Article VI not only contradicts such an outcome, but in fact proscribes it.
Boyko’s logical point here is simple, but that doesn’t make it uncontroversial. Because the Constitution is a legal document, he says, any appeal to the authority of the Constitution must be first and above all an appeal to the authority of its text, so that a decision rendered on a constitutional point must root itself in constitutional words. As Boyko freely acknowledges, this framework eliminates the possibility of relegating the Constitution to the status of a quaint backdrop overshadowed by a system of ostensibly constitutional standards that serve to obscure the meaning of the Constitution and extend judicial power:
Because the Constitution derives its authority from the words of the document itself—from its status as Constitution—and because Article VI mandates that no agency subordinate to the Constitution may violate its authority (even if such agency be entrusted with what we now call judicial review) there can exist no legitimate constitutional law where such jurisprudence “evolves” from any method of interpretive review that subjugates such text, or creates “tests” or “standards” that supplant or substitute explicit text. If such be the constitutional modality, then the authoritative meaning of that text, which sets forth the very authority with which to invoke it, must not, and indeed cannot, suffer at the protean attitudes, understandings, or protocol of nine unelected men and women, or a majority or plurality of them.”
Boyko highlights two primary methods by which the proper application of the Constitution is obstructed:
The most common method of imposing [constitutional] elasticity occurs through the addition of words and phrases to the text of the Constitution, thereby infusing it with both a meaning and an authority foreign to itself. Thus, Fifth Amendment “liberty” becomes infused with vague notions of “privacy,” and equal protection becomes divided into subparts of protected or “suspect” classes. Ultimately, then, there emerges the development of wholly novel concepts such as “substantive’ due process and other extra-constitutional doctrines, concepts evolving not from the text of the document but as authoritative “extra-text,” thereby achieving an impossible dichotomy of being melded with the document and yet altogether absent from it.
More insidious, however, and therefore more difficult to discern, is the opposite phenomenon: the disregard of explicit constitutional terminology, which being ignored, become orphaned; once orphaned, the text becomes meaningless as law, whereby, depending on a particular Justice or plurality of Justices, implicit terms become substitutes for explicit text. Over time, these implicit terms, by rote, derive their own explicit status, unquestioned, even unanalyzed; and so existing, thereby acquire a surrogate or “shadow” constitutional validity, bearing a more authoritative weight than the actual text itself. These surrogates, possessing such illegitimate rote authority, become imbedded within constitutional jurisprudence as super-constitutional inquires that, like “ghoul[s] in…late night horror movies,” are killed, resurrected, and killed again, as would seem appropriate under the particulars of any given case.
The problems Boyko outlines here have been evident for quite a while, although I’ve never read a clearer explanation of the constitutional “surrogacy” that has allowed the Court to abandon any consistent application of the Constitution in controversial subject areas. Nowhere is the replacement of the actual text of the Constitution with judge-made surrogates more evident than in the Court’s approach to the First Amendment’s treatment of religion, where the three prongs of the Lemon test and terms like neutrality and even–handedness and coercion have created a morass of standards so convoluted and so inconsistently applied that the outcome of any given case involving religious exercise and establishment is literally impossible to predict. From this perspective, Boyko’s grammatical interpretive approach glitters with the promise of sane and consistent application:
This thesis proposes an approach to Establishment Clause jurisprudence (and one applicable to constitutional interpretation as a whole) that maintains fidelity to the Constitution by confining the application and interpretation of explicit text to the strictures of well-established norms of grammar and usage…In other words, this approach places a type of “linguistic seal” upon the Constitution that allows judicial interpretation to achieve consistent application within the parameters of modern society. Since judges today are bound by the same rules of grammar and usage comprising standard written English that bound the framers at the Constitutional Convention, this linguistic approach seals the original structure of the text within the parameters of modern application.
Obviously, no theory is as clear-cut as selective excerpting can make it appear, and Boyko deals with some of the more intricate particulars in the substantial body of his article, the whole of which is well worth a thorough read. But on first impressions, at least, I find Boyko’s argument both reasonable and attractive. A coherent approach to constitutional interpretation that defers to the text of the Constitution and simultaneously reins in over-energetic justices—what’s not to love?
Miriel Thomas Reneau is a member of the Humane Pursuits editorial board. She has served as an ISI Honors Fellow, a John Jay Fellow, and an American Enterprise Institute policy analyst in constitutional studies. She endures many a sleepless night, though reports differ on whether this is due to her concern over federal courts’ equity jurisdiction or her addiction to caramel lattes. In her daytime hours, she can be found defending St. Augustine against Calvinist co-optation and T. S. Eliot against everyone.