Textualists argue that the only legitimate reading of the Constitution requires strict adherence to the written text only, and do not contemplate other interpretation. This view presupposes that the original document was perfect as written and amended. But with slavery as the glaring example, the Constitution, with all its flexibility and balance, was far from perfect in conception and execution. A strict interpretation of the original document would, in cases of impeachment of the Vice President, allow him to preside at his own trial, in violation of a long-standing understanding in Common Law that a man cannot be a judge in his own matter. So this absurd consequence could not and would not have been allowed to stand in the final draft, had it been recognized by the drafters.
The document itself contemplates and makes provision for its own alteration by amendment, in Article V. Congress immediately added amendments, to answer States' concerns about insufficient safeguards for individual rights. Clearly the framers recognized the document to be a work-in-progress, even from the earliest days.
The Bill of Rights, so called only after enactment, codified various rights felt to be self-evident by many of the drafters. But the inclusion of these rights was politically necessary to secure the ratification by holdout states, including Massachusetts, Virginia and New York. Even within these Amendments, the Ninth stated explicitly that there were additional rights not enumerated in the Constitution, which were nevertheless retained by the People. This reference alone undercuts fully any notion that the founders expected the document to stand on its own as the entire understanding. Many rights, such as "Privacy", remained unstated precisely because they were intrinsic to the basic understanding of civilized men under Common Law.
Hamilton and Madison, writing in the Federalist Papers, state that the intention of the framers was to write not a detailed code--long, particular and unintelligible to the common citizen, but a statement of principle and structure. The recorded debate in the Philadelphia convention also reflects this belief. The very terseness of the finished document conveys the understanding of the Founders, that all possible circumstances could not be anticipated, nor all problems resolved with particularity. The point was to provide a structure and a division of power that allowed circumstances to be dealt with as they arose. The separation of powers allowed the appropriate branch of government to deal with those circumstances they were empowered to regulate, and the power of amendment allowed for alterations when that separation was unclear or inadequate.
The need to go beyond the text of the document, in order to make sense of the powers of government, is supported by several arguments. These arguments do not pretend to claim that we may disregard the plain language of the document, but where there is ambiguity, or even unanticipated absurdity, the extra-textual interpretations must have a place. Professor Akhil Reed Amar, in his book, America's Unwritten Constitution, advances the notion of an “intrinsic” unwritten Constitution, which relies on common understanding of the rule of law. This additional layer of interpretation asserts that unless the text explicitly insists on an absurdity, the unwritten understanding may and must be used to interpret the written text, as in the Vice Presidential impeachment example above.
The act of Enactment by the States within the convention, and afterwards, during ratification, provides an additional example of the unwritten nature of some of the national understanding. These rights begin with the explicit statement and general understanding that the supreme power of government is the People, and their consent to be governed. The power of the Constitution flows from that. Slavish attention to the text and what it says, ignores what it pointedly does not say, regarding, for example, religious tests for participation in government, or implied powers of Congress do additional acts, in order to carry out those tasks which it must necessarily do, as in establishment of a National Bank, or maintenance of a Navy.
And finally, as the People have lived their lives, they have come to expect that they will not be molested in ordinary and common things, even though these expectations may change over time. The Constitution protects these, as stated in the Ninth Amendment, and can codify them by Amendment, as the People and the march of History demand. Thus, voting rights for Citizens were contemplated in the original draft, and as Citizenship expanded to include Blacks after the cataclysm of the Civil War, and later, women, these rights became part of the expectation of both Blacks and women. But it took a war, the Fourteenth, Fifteenth and Nineteenth Amendments, and finally judicial action to overcome historical resistance, and bring these reasonable and Constitutional expectations to the status of full legal rights. It is neither historically accurate, nor logically defensible, to insist that the plain text is the only applicable standard. It may be reasonable to disagree about where the role of the judiciary in interpretation should start and stop, and where the legislature and the amendment process should take precedence, but the notion that the original text and the understanding of the 18th century must rule us now is agenda-driven nonsense.
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