School Vouchers and the Problem of the Recalcitrant Constitutional Text

Abstract

It is hard being a constitutional textualist. On one hand, the theorist who argues in favor of absolute fidelity to the literal meaning of the constitutional text is fighting a losing battle against the long Anglo-American tradition of common-law adjudication. In this tradition texts are not mere templates. The common understanding of the legal process is that the words used in legal texts should not be interpreted literally, but rather should be read in context. Textualists generally define the context of a legal document by the overall structure of the relevant legal document, past judicial interpretations, social and legal traditions, and changing social mores and understandings. On the other hand, textualists are sometimes hoisted on their own petard by a text whose unmistakable meaning leads them where they do not want to go. Interpretive textualism tends to be associated with political conservatism. However, politically conservative textualists are occasionally confronted with legal texts that directly contradict the conservative policy objectives that tend to motivate proposals for literalist readings of constitutional texts. In such cases, textualists must ultimately resort to the same subjective and contextual interpretations of language that they claim to eschew.