George Washington Law Review
textualism, constitutional interpretation, originalism, legal pragmatism, the Ninth Amendment
Constitutional Law | Jurisprudence | Law
Textualism, like other foundationalist theories such as originalism, purports to be a grand theory of constitutional interpretation, answering all questions with the same single-minded and narrowly constrained technique. The inevitable result is a diminution of what one might call judgment. Judgment is what judges use to decide cases when the answer is not tightly constrained by some interpretive theory. It is an aspect of what others have called prudence, or pragmatism.' But if one has a theory of constitutional interpretation that is supposed to produce clear answers in a relatively mechanical way, there is little room for the exercise of judgment, and judgment thus tends to atrophy.
Without a flourishing sense of judgment, there is no way to evaluate the results produced by any particular theory. Professor Amar's close attention to text can therefore lead him to brilliant insights, as in the federal jurisdiction area, or it can lead him to dead ends, as with the Ninth Amendment. Unfortunately, he seems unable to distinguish between the two, because his dedication to textualism as the only valid interpretive method deprives him of the ability to stand back and ask whether his results make sense.
Textualism and Judgment, 66 George Washington Law Review. 1148
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1009