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Unpublished Paper
Against the Creation Myth of Textualism: Theories of Constitutional Interpretation in the Nineteenth Century
ExpressO (2010)
  • John P. Figura
Abstract

Resounding in the debate between textualists and purposivists is a subtle yet powerful narrative that figures purposivism as a twentieth-century phenomenon and textualism as a renaissance, 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 traditional, conservative choice—and puts purposivists in the position of defending a comparatively recent, radical position.

The 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. Story and his followers embraced the plain meaning rule and a text-focused interpretive framework, but they founded their approach on 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 as conventional purposivism. This eclectic group set aside the plain meaning rule and counseled interpreters to more freely use extratextual indicia—both historical and contemporary—of constitutional meaning. Only by the 1880s did theorists begin to experiment with non-purposivist interpretation, but they turned not toward the text but to society. In their view, one should interpret the Constitution not with regard to the words on the page but with a Burkean understanding of the nation’s evolving cultural and economic character.

In constitutional interpretation, then, the nineteenth century was a mostly purposivist age, not a textualist one. It was an era in which purposivism was the textually conservative choice and in which there was little, if any, credence given to the proposition that the Constitution should be read through a textualist lens. In constitutional interpretation, textualism is not a renaissance but a novel departure from a purposivist tradition. An understanding of that tradition is particularly useful today, as we stand poised to discard purposivism and enter an age of textualist consensus.

Keywords
  • Textualism,
  • purposivism,
  • originalism,
  • evolution,
  • Antonin Scalia,
  • Joseph Story,
  • Thomas Cooley,
  • Ernst Freund,
  • Herbert Spencer,
  • John Marshall,
  • Henry Blackstone,
  • Christopher Tiedeman,
  • Francis Lieber,
  • Frank Goodnow
Disciplines
Publication Date
March 4, 2010
Citation Information
John P. Figura. "Against the Creation Myth of Textualism: Theories of Constitutional Interpretation in the Nineteenth Century" ExpressO (2010)
Available at: http://works.bepress.com/john_figura/1/