Issue 2

What is Textualism?

In discussions of statutory interpretation, people often suggest that “textualists” and “intentionalists” have fundamentally different goals: Intentionalists try to identify the “subjective” intent of the enacting legislature, while textualists care only about the “objective” meaning of the statutory text. This distinction, however, is far less helpful than the rhetoric on both sides suggests. To begin with, the distinction itself is exaggerated; judges whom we think of as textualists construct their sense of objective meaning from what the evidence that they are willing to consider tells them about the subjective intent of the enacting legislature. Many textualists do impose more restrictions than the typical intentionalist on the evidence of intent that they are willing to consider, but those restrictions need not reflect any fundamental disagreement about the goals of interpretation. In any event, whatever disagreements may exist on this score do not account for the most significant differences between textualism and intentionalism. Thus, even when there is no useful legislative history on some question of interpretation (and hence no intrinsic reason for the “objective” meaning sought by textualists to diverge from the “subjective” intent sought by intentionalists), one can still expect to observe systematic differences between the results reached by textualists and the results reached by intentionalists.

For people seeking to describe how textualism and intentionalism really differ, the familiar distinction between rules and standards is a more productive starting point than the distinction between “objective” meaning and “subjective” intent. Within certain constraints, all mainstream interpreters seek the meaning intended by the enacting legislature. As a methodological matter, however, textualists seem to believe that a relatively rule-based approach to interpretation is likely to bring judges closer to that goal than the more holistic techniques favored by intentionalists. As a normative matter, moreover, textualists are more likely than intentionalists to resolve uncertainties in favor of “ruleness”; when the meaning intended by the enacting legislature is concededly unclear, it is unusual for intentionalists to settle upon a more rule-like interpretation than textualists. Without regard to any purported disagreement about the goals of interpretation, these twin differences are capable of generating most of the divide that we currently observe.

Revitalizing the Forgotten Uniformity Constraint on the Commerce Power

Employing a straightforward textual reading of the Commerce Clause, which, unlike other constitutional clauses, does not expressly mandate uniform regulation, the Supreme Court has recently declared that Congress is free to enact commercial regulations that apply in some states, but not in others, or that explicitly treat some states differently than others. This Article seeks to call that conclusion into question, and in the course of doing so, to explore the proper roles of history and text in constitutional decisionmaking.

From a historical perspective, the desire for uniformity was both the precipitating factor in the creation of the federal commerce power and a fundamental limitation upon that power. Fearing that Congress would use the commerce power as a means of discriminating in favor of some states at the expense of others, the Constitutional Convention ratified a provision intended to preclude Congress from enacting nonuniform regulations of commerce. For purely stylistic reasons, that provision was ultimately broken into two different clauses: the Port Preference Clause and the Uniformity Clause, but the framers understood those clauses to be one in purpose, and to have the combined effect of categorically prohibiting the nonuniform exercise of the commerce power. 

Because the framers narrowly conceived the commerce power as extending only to the imposition of excises and duties and the regulation of navigation and shipping, their decision to divide the mandate against the nonuniform regulation of commerce into two, more narrowly drawn clauses seemed inconsequential. The Uniformity Clause, which requires all excises and duties to be uniform throughout the United States, and the Port Preference Clause, which precludes Congress from enacting regulations of navigation or shipping that favor the ports of one state over those of another, were sufficient in their day to fully protect against the nonuniform exercise of the commerce power. In today’s world, however—a world in which the commerce power has achieved a drastically broader ambit—if we continue to read the Uniformity and Port Preference Clauses narrowly and literally, and if we fail to imply a general uniformity constraint on the commerce power, then we fatally undermine the fundamental constitutional principle that pervaded the Constitutional Convention that Congress must not be permitted to use the commerce power to favor some states at the expense of others. This Article contends that we should interpret the Constitution in a manner that preserves this fundamental precept and ensures that it remains relevant and vital in the twenty-first century and beyond.

“Happy” Birthday, Brown v. Board of Education? Brown’s Fiftieth Anniversary and the New Critics of Supreme Court Muscularity

Professor Michael Klarman’s book, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, covers the entire corpus of Supreme Court case decisions concerning race, from the infamous Plessy v. Ferguson in 1896 to Brown v. Board of Education in 1954. Klarman addresses three principal questions: What factors explain the dramatic changes in racial attitudes and practices that occurred between 1900 and 1950? What factors explain judicial rulings such as Plessy and Brown? How much did such Court decisions influence the larger world of race relations? Klarman argues that, in regard to whether state-imposed segregation of the races violated the Equal Protection Clause of the Fourteenth Amendment, the Supreme Court only reconsidered the meaning of the Constitution once public attitudes had already changed. He writes that the Supreme Court “did not invalidate racial segregation until after public opinion on race had changed dramatically as a result of various forces that originated in, or were accelerated by, World War II.” 

This Review explicates the interpretive sweep of Klarman’s book: its treatment of the Jim Crow decades, of the World War II years, of the Brown decision, and of the civil rights movement. It then critically considers Klarman’s overarching argument concerning the Supreme Court’s supposedly minimal role and influence in American politics and society. Lastly, the Review contends that Klarman’s analysis, when understood in conjunction with recent writings by Professors Rosenberg, Tushnet, and Rosen, represents both a potent and a potentially dangerous new political critique of the Supreme Court’s traditional power of constitutional judicial review.

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