Some constitutional scholars, who call themselves textualists, say that the only source of meaning in constitutional law should be the text of the Constitution itself. While being faithful to the text is important, there are instances that require us to look beyond strict textualism.
We can take the example of the Vice President and the question of who shall preside over his impeachment. A strict reading of the Constitution would indicate that the Vice President himself would preside. After all, he is the presiding officer of the Senate (where impeachment trials are held) and the text of the Constitution only allows for an exception to this rule when the President is impeached. Is it absurd to think that we would allow a man to preside over his own trial? It would seem so, but only by looking outside of the literal text can that absurdity be understood.
To look outside, however, we must first start by looking at the document itself more holistically. For instance, the preamble states that the Constitution was ordained, in part, to “establish Justice.” Is it just for a man to preside over his own trial? James Madison in Federalist #10 points out that “no man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” So, we can identify an obvious error in the document only by understanding the legal culture in which it was drafted.
To rectify this particular error, however, we can look to the text itself, but only by “reading between the lines,” as Professor Akhil Reed Amar would put it. Specifically, the Senate, with the power to “determine the Rules of its Proceedings,” could easily appoint some other party to preside over the Vice President’s impeachment.
Other than addressing obvious holes in the document, there are specific areas in the text that require interpretation beyond the literal reading. For instance, the Ninth Amendment states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This implies that the people have rights prior to the establishment of the Constitution. But how are we to determine these rights?
To address this problem, Professor Amar suggests that we take into account how Americans have “lived their lives in ordinary ways.” Put more broadly, we must look at the “lived Constitution.”
An example of the lived Constitution is the emergent norm of defendants testifying on their own behalf at their trial – something that was not allowed at the time the Constitution was written. Over time, however, this practice has become so commonplace that to strike it down as being unconstitutional would seem unjust.
We also have to look to a lived Constitution if we expect to address legal questions that involve modern technology. For instance, is a person’s cellphone protected from an unreasonable search under the 4th Amendment? (See U.S. v. Wurie.) Such devices today can contain a wealth of information about our lives, including financial information, personal contacts, schedules, etc. It would seem that they would be protected as personal papers and effects.
However, in Chimel v. California (1969) the Supreme Court ruled that police can search the immediate vicinity of a subject. Does this include a cellphone a subject may be carrying? If so, how much of the cellphone can be searched before such a search is considered unreasonable? Such questions need to be answered by interpreting not only the textual but also the lived Constitution.
An argument could be made that the issues listed here could be addressed by the amendment process of the Constitution. This, by its very nature, would be a more textualist approach. However, such an approach would, as John Marshall put it, “partake of the prolixity of a legal code,” and turn the Constitution into a document that “could scarcely be embraced by the human mind.” A better approach would seem to be to apply various principles and emergent norms to a more consistent, terse text. As Professor Amar would say, these principles and norms would help supplement, not supplant the text of the Constitution.