Farah Peterson, University of Chicago Law School, has posted The Limits of Text, which is forthcoming in the Yale Law Journal:
Let’s say the “laws” are the rules that actually constrain power, organize government, and coerce people. That is, let’s define the law as the system of rules we experience, and not just the system of rules our statutes, precedents, and founding documents describe. Just now, during the second Trump presidency, the gap between the law as it is written and the law as we experience it is obvious even to lay observers. Yet the dominant ways of thinking about law—textualism and originalism—are so focused on the proper interpretation of our legal texts that I fear we have lost sight of the limits on those texts’ capacity to guarantee the rights, obligations, and principles they enshrine.
The law as the Founding generations experienced it also differed from the law described in legal texts. The term “Founding” suggests, misleadingly, that Americans made a decisive political commitment to the style of government described in the Constitution. For some of the Constitution’s central features—including the delineation of federal and state prerogatives, separation of powers, and federal judicial authority—ratification was the beginning of a process of constitutional change, not the end.
Because law in practice differed from the law on the page, we cannot know the content of the original Constitution by reading its words, by knowing what the text would have meant to English-speaking contemporaries, or by reference to early judicial interpretation. This Atkins Feature discusses how early American law differed from text and why, and what early American history teaches us about when we should expect texts to create governing law and when we should expect text and law to diverge. Those lessons should make us cautious about the weight we place on written law. That is not to say text does not matter. But a simplistic insistence that text defines the system of rules we experience—that it can constrain power in the face of changing norms or protect our system of government—is dangerous.
--Dan Ernst
