Treanor, Against Textualism

Against Textualism has just been posted by Dean William Michael Treanor, Fordham University School of Law. It is forthcoming in the Northwestern University Law Review, (2009). Here's the abstract:

Modern textualists have assumed that careful attention to constitutional text is the key to the recovery of the Constitution's original public meaning. This Article challenges that assumption by showing the importance of nontextual factors in early constitutional interpretation. The Founding generation consistently relied on structural concerns, policy, ratifiers’ and drafters’ intent, and broad principles of government. To exclude such nontextual factors from constitutional interpretation is to depart from original public meaning because the Founders gave these factors great weight in ascertaining meaning. Moreover, for a modern judge seeking to apply original public meaning, the threshold question is not simply; "How did the Founding generation think the Constitution should be interpreted?"; rather, it should be: “How did the Founding generation think courts should interpret the Constitution?” The early caselaw shows that courts aggressively used the federal Constitution and state constitutions to protect the power and autonomy of courts and juries; federal courts also closely circumscribed state powers when they appeared to violate the federal Constitution or implicated federal powers or other states. Outside of these areas, courts were wholly deferential. This caselaw indicates, then, that, for a modern court, recovering original meaning necessitates a central focus on structural concerns - protecting juries, courts, and the national government - rather than text.