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Paulsen: Written Textualism is the Sole Approach for Interpretation

By Eric L. Lipman

In an article posted on Sunday to the Social Science Research Network, Professor Michael Stokes Paulsen, of the University of St. Thomas School of Law, writes that the U.S. Constitution ?both as a consequence of its nature as a written document, and by virtue of its specific words, prescribes written textualism as the sole appropriate approach to understanding and applying its provisions.?

As part of a forthcoming issue of the Northwestern University Law Review, Professor Paulsen carefully details his claim that the Constitution itself presses for the use of written textualism in constitutional interpretation; although, says Paulsen, it does so in way that is ?free of the language of interpretive theory, hermeneutic principles, or the academic gobbledygook that so pervades, and perverts, much law-review discussion of how the Constitution is to be interpreted.? Paulsen argues:

The document?s instruction to look to the document ? ?this Constitution? ? commands an internal perspective, forbidding external, private assignments of meaning. The fact that the document specifies the document as the sole source of binding authority also implies the exclusivity of the text. It precludes treating any ?thing? external to the text as authoritative.

Similarly bold, Professor Paulsen contends that unless a constitutional provision has been formally amended, its meaning was fixed on the date of ratification, September 17, 1787.

Written textualism also implies that the meaning of the text is fixed. It is fixed not only as against private assignments of meaning but as against shifting understandings of words and phrases over time ? that is, it is fixed as against sudden or gradual anachronistic readings of its words. The meaning of the text is fixed at a point in time. Again, the text appears to command this perspective, stating in Article VII that the text was written at a particular designated point in historical time, September 17, 1787, and stating in Article V that subsequent amendments become operative as ?Part of this Constitution? at the time ?when ratified.?

Paulsen?s complete analysis, which starts slowly but quickly builds real speed, is accessible here.

Full post as published by Within the Scope on November 18, 2008 (boomark / email).