Wednesday, December 23, 2009

Figura on Constitutional Interpretive Theory in the 1800s

A Mostly Purposivist Century: Constitutional Interpretive Theory in the 1800s is a new paper by John P. Figura, Emory University School of Law. Here's the abstract:
Resounding in the debate between textualists and purposivists, is a pervasive, if subtle, historical narrative that figures purposivism as a twentieth-century phenomenon and textualism as a new-and-improved version of the text-focused, plain-meaning interpretation that predominated in the nineteenth century. This account gives textualists the historical high ground - the safe, traditional, and conservative choice - and puts purposivists in the position of having to defend a relatively recent and comparatively radical position.
This accuracy of this account is belied, however, by nineteenth-century judges’ methods of constitutional interpretation, as expounded by treatise writers of the era. Their theories can be categorized in three groups, none of which is more than superficially textualist. First was an approach popularized by Joseph Story in mid-century that I call plain meaning purposivism. These thinkers embraced a strong plain meaning rule and a text-focused interpretive framework, but they founded their approach on a set of strongly intentionalist and purposivist notions of the overall meaning of the Constitution. This school was followed after the Civil War by a more direct form of purposivism that I refer to simply as conventional purposivism. These purposivists softened the plain-meaning purposivists’ meaning rule and counseled interpreters to more freely use extratextual indicia of constitutional and legislative intent. By the 1880s, a third and non-purposivist group had evolved: evolutionary constitutionalists. In their view, the Constitution should be interpreted not with regard to original intention but with a Burkean, Spencerian understanding of the nation’s evolving cultural, social, and economic character.
The nineteenth century, then, was a mostly purposivist age. It was an era in which purposivism, in contrast to evolutionary constitutionalism, was the textually conservative choice, and in which textualism, which is founded on the fundamental rejection of intentionalism, did not exist. An understanding of this history is particularly pertinent today, as our interpretive discourse stands poised to discard purposivism and enter an age of textualist consensus.


Shag from Brookline said...

While the abstract refers to "intent," it seems to avoid "originalism." Perhaps textualism was the equivalent of "originalism" in the 19th century. Perhaps this article might be helpful in understanding the various forms of "originalism" since AG Ed Meese in the 1980s.

Shag from Brookline said...

I'm curious. Did the Framers consider including a provision for interpreting the Constitution they were putting together? If so, just how might they have structured such a provision? If not, why not?

Shag from Brookline said...

I read Mr. Figura's article and applaud him on his efforts. His article helps to fill many gaps on current day approaches of constitutional scholars on constitutional interpretation that tend to sluff over much of the history of legal commentators during the late 18th and the entire 19th century. Too many current day commentators engage in historical cherrypicking. Mr. Figura seems to have identified and commented on many more 19th century constitutional scholars than have current exponents of originalism in its various forms. Here's his closing paragraph:

"Of course, the historical predominance and relative conservatism of purposivism in the nineteenth century cannot determine our choices today. But it provides a bit of valuable perspective and challenges to us to examine our assumptions about the prehistory of the interpretive approaches today. At the very least, it should force textualists to acknowledge that their theoretical approach is not a conservative return to a wiser era that predated purposivism, but rather a bold departure from an established - if dynamic - purposivist tradition. Maintaining such a discussion would be particular[ly] valuable today, as our interpretive community faces the prospect of a new textualist consensus."