A New Originalism: Reading The Constitution As A Text

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 evenhandedness 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?


  • April 27, 2010


    I, myself, am a textualist when it comes to constitutional interpretation. But I think Boyko glosses over and underestimates the problem of vagueness. I do think that many judges distill general, abstract principles from individual or aggregate clauses of the Constitution and then invent standards to apply those abstract ideas, but I don’t think the error of this negates all ambiguity in the Constitution. Some parts of the Constitution, though simply worded, do use broad words, malleable phrases, and terms of art. The First Amendment is a great example. It’s easy to say that judges should go back to the words of the text, but that only begs the question of what the words mean. How do you define “an establishment of religion?” How do you define “a religion?” What does “exercise” include? For these questions, tests are, for better or worse, necessary to a consistent and fair application of the law.

  • April 27, 2010

    Brian Brown

    Good points, both of you. “Cruel and unusual punishment” is perhaps the most obvious part of the text that provokes extratextual analysis–not because of judicial activism, but because the phrase itself is imbued with legal, extratextual, meaning. The nature of law is such that no document (even a founding one) can escape all precedents and preexisting concepts.

    Boyko’s idea thus strikes me as an overly simplistic form of textualism. No document can be understood in a vacuum. Just as the Framers knew precisely what “cruel and unusual punishment” meant in the 1780s, we (meaning judges) have to know what ambiguities mean. We can choose an evolving meaning driven by judges, a fixed meaning driven by original intent, or a contextual meaning anchored in legal precedent or historical setting, or we could reject the idea of judicial review entirely…but we have to have a context for interpretation of ambiguities one way or the other.

    If we treat the Constitution as any other legal text, we allow it to be placed alongside other legal texts in its susceptibility to historical or contextual influences (i.e. “when ‘cruel and unusual punishment’ was written, its authors meant…”). If we nevertheless insist on a purely intra-textual interpretation, we depart fairly sharply from the legal system in which the Framers worked. I don’t think the Framers intended by the Constitution to establish a brand-new legal system from scratch (a la “Year 1” in the French Revolution), given that most other state and federal laws remained in place after ratification. Assuming I am right, that leaves the Constitution firmly planted in historical context and legal tradition–representing a new beginning of the federal government, but not of the law itself.

  • April 27, 2010


    “Cruel and unusual punishment” is a great example. I think that’s exactly the situation where the founders used a vague, open-ended phrase. As I am strongly opposed to attempting to divine the attempt of legislators and founders, I wouldn’t look to define “cruel and unusual punishment” as the set of such punishments that the founders knew of at the time. Rather, I would read it more simply; I would read it as their acknowledgment that they cannot predict what new punishments will be created, and so all future cases are to be judged by what is then cruel and unusual.

    The same thing applies to the second amendment. It’s silly to think that “arms” refers only to those weapons available in 1787. That would be like saying that federal regulations on automobiles only apply to those that had invented up to when the regulation was written.

    I think this hermeneutic gives considerable and admirable flexibility for the Constitution to retain relevance over time. Unfortunately, many “living constitution” jurisprudes use this as an excuse to read even more into words that plainly don’t call for it.

  • April 28, 2010

    Bryan Wandel

    I’m not sure I understand your extrahistorical textualism. If law is extrahistorical text, that would seem to create far more problems than answers. Boyko similarly asks for a “linguistic seal,” which seems to me both impossible and foolish, since there are at least subtle ways in which we are not bound by the same rules of grammar and usage as the Founders. The second amendment’s superfluous use of commas would seem to be a prime example. (In fact, it would be more accurate to say that the Founders were not bound by our rules of grammar, since grammar was less standardized in the 18th century.)

    This historical linguistic gap that must be bridged would seem to require not only interpretation, but to a certain degree, translation at the least. Usage, likewise, creates difficulties.

    While the Constitution is in some sense a legal document, it is also extralegal, as any founding document is. The Constitution itself was bound to no particular form, end, or means of ratification, but defined all these things for itself. Even if you were to accept that these ends were adopted by duly constituted delegates, according to law, there was not “legal” authority to reconstitute government. As Hobbes said, there is always a core in government that is absolute and, I would say, outside any “legal” definition of authority. Thus, it would seem unwarranted to apply the same standard of interpretation to the Constitution as you would to some legal text, even if that latter method was extrahistorical textualism.

  • April 29, 2010


    I didn’t say, or certainly didn’t mean to say, that the Constitution is extrahistorical. That being said, there are parts of the Constitution, and in many laws and other documents that courts must construe in order to apply, that were intentionally vague. “Cruel and unusual punishment” is an example. To ban such a thing begs the question of what is cruel and what is unusual. These are obviously concepts that, within reasonable boundaries, can vary or evolve with time. I don’t use the word “evolve” in the way those who support “evolving standards of decency,” but to signify that history will always continue to provide novel instantiations of ancient ideas.

    As for Boyko’s “linguistic seal,” I agree that it’s foolish an impossible. That being said, a majority of the text of the Constitution is comprised of words that still mean today what they meant then – despite what some judges and justices might wish to think.

    My approach to legal interpretation, and that which was, until the 20th century, the age-old standard, is: you start with the text of the law or document and look for its plain meaning. Then you apply the plain meaning to the situation at hand. If part or all of the text is ambiguous, its meaning is to be determined by looking to what the words would have and did mean to those who wrote them. If this is unclear, then you may look to other documents, such as legislative history, to determine the intent of the authors (this is a last resort, as it is prone to speculation and cherry-picking).

  • April 30, 2010

    Bryan Wandel

    That’s more clear.