Taking Text Too Seriously: Modern Textualism, Original Meaning, and the Case of Amar's Bill of Rights

Abstract:     
Championed on the Supreme Court by Justices Scalia and Thomas and championed in academia most prominently by Professor Akhil Amar, textualism has in the past twenty years emerged as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning and, in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This article uses Professor Amar's book, The Bill of Rights, the widely acclaimed masterpiece of the textualist movement, as a case study to test the validity of that assumption.

Amar's work has profoundly influenced subsequent scholarship and case law with its argument that the Bill of Rights primarily reflected republican rights of the people, rather than individual rights. This article shows that Amar's republican reading is incorrect and that his textualist interpretive approach repeatedly leads him astray. Amar incorrectly assumes that words have the same meaning throughout the document, assigns a significance to the placement of clauses that is belied by the drafting history, and incorrectly posits that the Bill of Rights reflects a unitary ideological vision. The textualist search for original public meaning cannot be squared with an interpretive approach that assumes that all word choices were made with a high degree of care, that the significance of location can be assessed simply by examining the four corners of the document, and that the Constitution must be understood holistically. Analysis of Professor Amar's The Bill of Rights indicates that, paradoxically, close reading is a poor guide to original meaning.

Working Paper Series