Reading the Constitution
Dateline: August 09, 2000
"READING THE CONSTITUTION" > Page 1 , 2 , 3 , 4 , 5
Textualist Cases
Considering the critiques some advocates of textualism have levied against recent Supreme Court decisions (like Griswold and Roe), it's worth considering some decisions made under their assumptions.
A good example would be the infamous Dred Scott case. Although Scott had made it to a free state and lived as a free man, Chief Justice Roger B. Taney ruled that he was always still a slave - and his reasoning was of the sort that would make a textualist proud. First, he stated that Scott was not in any way, shape or form a citizen of the United States who could sue for freedom in the first place:
We must inquire who, at the time (1787-1788), were recognized as the citizens of a state, whose rights and liberties had been outraged by the English government, and who declared their independence, and assumed the powers of Government to defend their rights by force of arms... We refer to these historical facts for the purpose of showing the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted.
Second, Taney ruled that Congress had exceeded its authority in outlawing slavery in some states because the Constitution's text did not explicitly grant it such power. Finally, the Constitution did explicitly hold that slaves were property, not people.
Unsurprisingly, this is widely considered to be one of the worst decisions in the entire history of the Supreme Court. It crystallized the already partisan attitudes towards slavery and was a major contributor to the eventual Civil War. Unfortunately, the legal reasoning is correct under textualist premises.
Another important case - although not as widely known - is Olmstead v. United States (1928). Olmstead had been convicted of illegally transporting and selling liquor during Prohibition, and the evidence had been obtained via a wiretap. At the time, the police did not have to get permission to tap phone lines and Olmstead sued, arguing that his rights under the Fourth Amendment were violated.
A true textualist, Chief Justice William Howard Taft wrote:
The amendment itself shows that the search is to be of material things - the person, the house, his papers or his effects. The amendment does not forbid what was done here for there was no seizure. The evidence was secured by the sense of hearing and that only. There was not entry of the houses. The language of the amendment cannot be extended and expanded.
There is no arguing that, under textualist principles, this was a fair decision - but we should also consider ourselves very fortunate that textualists did not, over the long term, win in this issue. Even at the time, Justice Brandeis foreshadowed later ideas by writing in his dissent that the Fourth and Fifth Amendments confer upon us a general right to individual privacy and not simply a protection of material possessions.
It is interesting to consider what other rights we might lose if we stuck with textualism. The Constitution consistently refers to "men" - and it would be tough to argue that the authors had women in mind when they wrote that.
And what about our money? Few seem to know that the Constitution only gives our government the right to coin money - the right to print money was very deliberately left out because the authors didn't want the government doing it. A strict interpretation would force us carry around a lot more metal in our pockets.
Although it is true that the intent of the authors should be considered and given serious weight, it seems clear that it is not a sound policy to limit ourselves to that and only that. So what are the arguments in favor of allowing judges more leeway in how they read the Constitution?
Go on to read about how the Constitution can be read as a living and moral document...
Next Page > Constitution: Living & Moral
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