This Article challenges the validity of plain language textualism, an allegedly superior method of constitutional interpretation based solely on the “plain language” of the Constitution. First, this Article demonstrates that, notwithstanding the ebb and flow of support for this interpretive method, both the Supreme Court and its individual Justices often seek to “plainly” define various provisions in the Constitution. What matters most to this Article is not whether any individual “plain language” interpretation of a constitutional provision seems reasonable or even best, but rather whether the use of “plain language” is consistent with the expressed and unexpressed objectives and purposes of plain language textualism. This, of course, requires a review of the objectives and purposes of this interpretive method. In the end, this Article asks the bigger question: whether one can self-righteously demand any interpretive method that requires assumptions and rationalizations inconsistent with the purposes of the interpretive method itself. In particular, one of the strongest arguments in favor of plain language textualism is that it eliminates the personal predilections of Justices interpreting the Constitution. This Article concludes, however, that plain language textualism actually ensconces the personal predilections of those who rely on it. This Article first will introduce plain language textualism, and then review the use of plain language textualism, noting some of the occasions where the Court (or an individual Justice) has applied, or purported to apply, plain language textualism. Using both the words of the Court and its Justices, as well as scholarly defenses of textualism and plain language textualism, this Article will discern the justifications for (or perhaps purposes of) plain language textualism. Next, this Article will demonstrate that plain language textualism is a creation of non-textual or extra-textual assumptions or conclusions. The point is that textualism, especially plain language textualism, suffers from the same failures that it purports to eliminate, because it actually protects that which it seeks to eliminate. It seeks to eliminate the use of personal predilections in constitutional interpretation by ensconcing into the Constitution the personal predilections of the plain language textualist.
- Constitutional Law,
- Constitutional Interpretation,
- Takings Clause
Available at: http://works.bepress.com/stephen_durden/3/