Textualism and Intentionalism


US Supreme Court Justice Antonin Scalia used to appeal to the concept of intentionalism as the foundation of his legal opinions on the meaning of the Constitution. That is, one must go back to discern the intentions of the framers when they wrote the Constitution.

Already there are problems with this view. Does this mean we are to read their minds? If not, what? Also, who are the framers? Does the document submitted by the Constitutional Convention for approval by the colonies embody the framers' collective intent, or rather the sum of their original intentions? Do the intentions of anyone else matter? What about those in each colony who voted to approve or not to approve the Constitution? Do the intentions of those who approved count, but not those who disagreed?

Before the Constitution was adopted, there was a fierce debate between the Federalists, who supported adoption of the Constitution, and the anti-Federalists, who were against it. Are the anti-Federalists to be consigned to the dust bin of history? I would say that many of the anti-Federalists would have agreed with the basic political philosophy that Justice Scalia embraces. And, moreover, I presume that Scalia, if he were candid, would agree with them, if only because he abandoned his original philosophy of intentionalism in favor of textualism.

Textualism attempts to discern the actual meaning of the words in the Constitution. This requires close reading of the text. Interestingly, a movement in literary theory in the 1950s and 1960s, called the New Criticism, also claimed to derive meaning from the intensive study of text. In it, one focuses intently on relatively short passages and attempts to relate the insights which emerge to other aspects of the literary work: character, images, theme, allusions, metaphors, plot and so forth. As can be seen, the purpose here is to open up the text. The hope is to arrive at a better understanding of the work as a whole. Scalia's interest in the text, on the other hand, instead of focusing outward to the whole, looks inward to the specific. In short, it ends where the New Criticism begins. Where then does it start? That is the question. What is the origin of Justice Scalia's thinking? The only answer to this question, I believe, is that it begins within Scalia himself and unfolds in his life history.* It is clear, to me at least, that Scalia's public statements about the Constitution, on and off the official record, are a trail of sophistry.

Frankly, I don't see how anyone can claim that the techniques of textualism or intentionalism alone, or together for that matter, can arrive at a plausible Constitutional interpretation of the many complex issues presented by typical Supreme Court cases, and much less the more controversial ones. How reliable can one man's understanding be of the minds of the framers (whatever "framers" means)? And why would Scalia have any special understanding of the meaning of words in the 1780s? Or even if Scalia is not a court of one,* even if he convinces a majority of members of the Supreme Court, is that proposition any more convincing?

No. What is missing in either case is context. Both text and intentions are abstractions; context is real. Philosophers of language distinguish between semantics, the words themselves, and pragmatics, the consequences of language in the real world. Intentions lead to consequences, but Scalia’s strict constructualism (i.e, textualism) insists upon semantics only. Pragmatism aligns with Scalia’s intentionalism, the problems with which we have seen above. But this is the very approach Scalia abandoned. Scalia thus falls between two stools.

* I owe this idea to Jeffrey Toobin.

** Bruce Allen Murphy, A Court of One (Simon & Schuster; Reprint edition (June 30, 2015)