Does the Constitution Mean What It Says

III. THE ANOMALIES The anomalies--instances in which the text of the Constitution seems inconsistent with well-established principles of constitutional law--are the most vivid evidence that U.S. constitutional law is not a text-based system. Of course, if you assert that a text is inconsistent with something, you are implicitly assigning a meaning to the text. But in the case of the anomalies, the meanings are pretty clear. (156) There is no need to resort to controversial theories of interpretation to show that the anomalies exist. The claim about the anomalies is not that it is impossible to read the language in a way that is consistent with the established principles. We do read it that way; in a sense, that is precisely the point. The claim is rather that the established principles are inconsistent with the most straightforward or natural reading. At the very least there is a tension between the text and the established principles, although I believe that understates the extent of the inconsistency in these cases. Something is causing us to "interpret" the language in the way we have. That something, as I have said, is the common law-like process that is characteristic of U.S. constitutional law. Implicit in all of this is Chief Justice Marshall's famous statement that "it is a constitution we are expounding." (157) We should not expect to treat the Constitution as if it were any ordinary text. But Chief Justice Marshall's dictum is just the starting point. The idea is to see, as best we can, what we are doing when we "expound" the Constitution. Expounding the U.S. Constitution means operating in a mixed system that comprises precedent as well as the text, and in which provisions of the Constitution often, as I have suggested, seem to function roughly in the same way as precedents. One way to put the point might be that the proper interpretation of the text, or the true meaning of the text, is one that harmonizes the text with the precedents and other sources of law. (158) Using terms like "interpretation" and "meaning" is problematic if it suggests that the text is foundational. But if we leave that implication aside, some version of that view seems to me correct. And it follows that fundamentalism is a mistake, and we should reconsider the notion that constitutional law is derived from the text in some meaningful way. It might be tempting to dissolve some of the anomalies by recourse to originalism--to say, for example, that the original understanding (somehow defined) of the Free Speech Clause was that it applied to the entire federal government, even though the language is limited to Congress; or that the Fourteenth Amendment was understood to incorporate the Bill of Rights. For most of these anomalies, original understandings don't help; there is not much doubt that the language of the constitutional provision, given its ordinary meaning, is consistent with the original understanding. But even when that is not true, resorting to the original understanding does not solve the problem posed by the anomalies. That is because, as I noted earlier, there are many well-settled instances in which constitutional law departs from original understandings. So even if the original understandings could resolve some of these anomalies, the question would be why we invoke the original understandings in these cases and not, for example, to discredit the cases that say the Equal Protection Clause forbids discrimination against women--a pretty uncontroversial example of a settled principle that is inconsistent with original understandings. If the answer to that question is that we resort to original understandings in order to save principles that are already well established--like the incorporation of the Bill of Rights--but not when the original understandings would undermine established principles, then, necessarily, something other than either the text or the original understandings is determining the content of constitutional law. …