On Sophomoric Textualism

The other day, while discussing court reform on Bluesky, I described the arguments against construing the phrase "good behavior" in Article III as meaning life tenure as "sophomoric textualism." What did I mean by that?

The idea here is that there's a phase everyone goes through when they're learning about constitutional law (whether formally in an academic setting or just from The Discourse). I went through it myself, more or less when I was a literal college sophomore, though the name is mostly meant in the older sense of "wise fool." The text, you see, is the most accessible part of all the stuff that makes up the Constitution. And so when someone is first engaging with constitutional law, they're going to be primarily working off the text. And of course the text all by itself is quite open-ended.

The mind, confronted with all of this, is prone to get... creative. You read some provision and all the things it could possibly mean swarm before your eyes, and perhaps one of them jumps out as particularly appealing. Maybe we're debating court reform, for instance, and you read the words "good behavior" and you think, hey, surely what Clarence Thomas is doing doesn't count as good behavior! Some buzzkill lawyer like me maybe then comes along and tells you, no, it means life tenure subject only to impeachment, this is very well settled, but you don't get what they're talking about. That's not what the text says, after all. How can they say your interpretation is wrong when it's at least as consistent with the text??

Now in many ways, this approach is not a bad thing! The ingenuity and inventiveness behind it is actually crucial to doing good constitutional law. You want to be open to all the potential lurking within the text, you don't want to just miss something for want of imagination. The thing is, this kind of creativity can't be left altogether unchecked.

Partly this is because the text isn't the entirety of what the Constitution is. As readers of this website will in due course grow tired of hearing me say, there are a plurality of different modes of constitutional interpretation, all perfectly legitimate. Each one, as I conceive of them, appeals to a slightly different conception of the Constitution-as-law, and all these different conceptions, in my view, are valid. The Constitution is the text. But it is also the intentions of those who adopted that text. It is also a framework for decision-making, and the corpus of decisions under that framework made over time. It is also a network of structures and relationships, an organic document by which the People invested the organs of state with power, with life.

The sophomoric textualist is blind to all of this. Again, this isn't their fault! The text is by far the most accessible part of What The Constitution Is. But what this means is that their very clever ideas about what the text could be read to mean often ignore problems that are immediately apparent once you're trained to think in terms of those other modes as well. And it is very easy to become taken with your own cleverness (I am speaking from personal experience here, to be clear) and take umbrage when someone tries to point those problems out. I had plenty of people the other day basically taking the position that any legal argument that isn't rooted in an express provision of the text is made-up nonsense, and let me tell you, that is not a road you want to go down if you want a basically liberal construction of the Constitution (in either sense of the word).

There's an even deeper issue, though. One of my favorite pieces of legal theory is Robert Cover's "Nomos and Narrative." One of the concepts in the piece is Cover's distinction between "jurisgenesis" and "jurispathy." Jurisgenesis is the business of creating law. It's exactly what I described above: people look at The Law and, in so doing, create their own version of it. They may do that deliberately, in the manner of an advocate, crafting an argument to support their position. But it may also happen kind of subconsciously: you just perceive the law a certain way. It's essentially unavoidable, a miniature of how each of us carries around our own little version of the entire universe.

But there's a problem. This kind of unbounded diversity of perception is great when we're talking about literature, but it can't actually be how the law works. Law is backed up by force (the theme of another Cover essay, "Violence and the Word," my actual favorite philosophy of law piece), and you just cannot have each of the people charged with deploying that force following a different vision of the law. This is where jurispathy comes in, and it's the essential role of the law courts. It's kind of a Thunderdome situation: two Laws enter, one Law leaves. From the standpoint of human creativity, the human spirit, jurispathy is, well, harsh. It entails killing off all these products of people's imagination. But it must be done, if law is to be law.

Jurisgenesis is about seeing all the things the law could be. Jurispathy is about seeing all the reasons why it can't be those things. It's a lot easier to see the former than the latter, and it's a lot more, well, fun. Getting good at jurispathy requires coming to see the Constitution as a whole, to appreciate the Pick-Up Sticks of it all, if you will, the way that changing one little thing might cause problems elsewhere. It's hard! And it means disciplining yourself to see the problems with your own clever ideas. There is no reason why a layperson, encountering some contested point of constitutional law in the hurly-burly of politics, should have that discipline, let alone the training to put it into effect.

Sophomoric textualism, then, is really really not a judgmental concept. We've all been there! It is a natural and understandable way for people who are not experts to approach the Constitution, and as I said earlier, there's a lot of good in it! The creativity and curiosity is genuinely admirable. But it can't be the final word.