The problem with ‘gotcha’ textualism

During Judge Ketanji Brown Jackson’s confirmation hearing, Sen. Marsha Blackburn (R-Tenn.) seemed triumphant when she confronted the Supreme Court nominee with the fact that the word “abortion” is not mentioned in the Constitution’s text. You could almost imagine her thinking “Gotcha.” While Blackburn’s comment about abortion is true, it has to be placed in context. There are a lot of words reflecting long accepted constitutional doctrines that are not in the text.

The term “federalism” isn’t mentioned. Nor are the phrases “separation of powers” or “checks and balances.” Rights such as freedom of association or the right to marry or have children aren’t there either. Key judicial concepts such as standing, ripeness, and mootness can’t be found in the text. Nor can metaphors beloved by conservatives such as a “colorblind” constitution. As the federal reserve bank is raising interest rates to combat inflation, it is worth noting that the authority to create a national bank like the federal reserve isn’t listed as a congressional power.

If we want to carry the commitment to textualism to its logical, but absurd limit, the Marines and the Air Force aren’t recognized either — just the Army and the Navy have constitutional recognition.

The point isn’t, of course, that the text is irrelevant; rather, its utility in dispositively resolving constitutional questions can be uncertain and complicated. Plain meaning textualism often can’t do the job standing alone.

Let me suggest some key ideas to keep in mind in discussing how to think about the lack of plain language in the Constitution’s text on important issues.

First, some ideas require a lot of interpretative maneuvering that goes far beyond the literal text. For example, the First Amendment states that “Congress shall make no law … prohibiting the free exercise [of religion] or abridging the freedom of speech …” But doesn’t the Constitution also prohibit states and local governments from suppressing these fundamental rights? It does. The Supreme Court has interpreted the 14^th Amendment to incorporate most of the Bill of Rights and to make those rights applicable to the states. However, the 14^th Amendment doesn’t say anything explicitly about incorporation. It is difficult to ground the incorporation idea on textual language alone.

Or consider another example. Does the Constitution prohibit the federal government from discriminating on the basis of race? On its face, the Equal Protection Clause (the provision which prohibits racial discrimination) of the 14^th Amendment only applies to state and local government. There is no provision explicitly prohibiting the federal government from denying racial groups the equal protection of the laws. Here again the Court has held that the federal government cannot engage in race discrimination. But it is a rocky road to get there by looking at the text alone.

Second, both conservative and liberal jurists make constitutional arguments that lack explicit textual support. Consider the text of the 11^th Amendment: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Does anyone see any language in this text that prohibits federal courts from adjudicating cases brought by citizens against the government of the state in which they reside? (Focus on the word “another” in answering this question.) However, that is how conservative justices on the Court have interpreted this provision. The Court’s explanation for this deviation from the text is that the 11^th Amendment was intended to protect a state’s sovereign immunity against suits by citizens of any state. That argument about historical intent is sharply disputed. More importantly, if we are focusing on the text, it is absolutely clear that neither the 11^th Amendment, nor any other provision of the Constitution mentions “sovereign immunity.” Like abortion, it just isn’t there.

Third, expansive reading of the text to overcome the lack of literal support for a constitutional interpretation isn’t some new-fangled aberration of judicial activism. Consider this language from a Supreme Court opinion adjudicating the scope of congressional power: “[The constitution] by its nature, therefore, requires that only its great outlines should be marked, its important objects designated and the minor ingredients which compose those objects be deduced from the nature of the objects themselves … we must never forget that it is a constitution we are expounding … [This is] a constitution intended to endure for ages to come, and consequently to be adapted to the various crisis of human affairs.”

That language has a powerful historical pedigree: It’s from John Marshall’s opinion in McCulloch v. Maryland decided in 1819. In McCulloch, the Court upheld Congress’s power to incorporate a national bank notwithstanding that neither establishing a bank nor creating a corporation are listed among the enumerated powers of Congress.

Fourth and finally, the text of the Constitution contemplates non-enumerated powers and non-enumerated rights. Congress did not have an enumerated power to incorporate a bank. But Article I, Section 8, Clause 18 did provide it with the extended authority “To make all laws which shall be necessary and proper for carrying into Execution” the enumerated powers of Congress and all other powers vested in the national government. With regard to non-enumerated rights, the text of the Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Freedom of speech is an enumerated right. Abortion is not. But the enumeration of freedom of speech and other rights should not be construed to deny or disparage other rights, not similarly enumerated — such as the right to have an abortion.

Alan Brownstein is a professor of law emeritus at the University of California, Davis School of Law. He has written numerous articles for academic journals and opinion pieces for other media on a range of constitutional law subjects. He is a member of the American Law Institute and served on the Legal Committee of the Northern California American Civil Liberties Union. He received his B.A. degree from Antioch College and earned his J.D. (magna cum laude) from Harvard Law School, where he served as a Case Editor of the Harvard Law Review.