Constitutional Law, Constitutional Litigation, and the Truth About Constitutional Text

By Eric Segall

There are many parts of the United States Constitution that seem unfair, outdated, and have terrible consequences. Article I requires that that there be two senators from every state regardless of population, which means North Dakota and California have the same power in the Senate even though California has 39 million people and North Dakota has roughly 800,000 people. Many Americans would prefer to vote for the President directly rather than through the constitutionally required electoral college. Article V makes amending the Constitution almost impossible--surely a bizarre feature for a document written centuries ago by and for white propertied males alone. And even the prescribed date of January 20th for presidential inauguration in the 20th Amendment is problematic. The two-and-a-half-month transition period allows a lame-duck president to accomplish considerable mischief--including fomenting an insurrection!--but a substantially earlier inauguration date could also create difficulties because the decentralized electoral college process plus post-election litigation mean that it can take a fair bit of time to resolve legal challenges and determine a winner. 

We follow all of those arguably terrible rules and many more because they are perfectly clear, and the American people accept the Constitution as the supreme law of the land. Constitutional litigation, however, is an entirely different matter.  

Nothing in the text of the First Amendment tells us whether Congress can require social media platforms to take legal responsibility for illegal speech on their websites (it is also often unclear what speech is constitutionally protected and what speech is not in the first place). Nothing in the text of the Second Amendment tells us whether New York can require good cause for concealed carry permits (much less whether the militia language should be deemed constitutionally irrelevant as the "textualists" on the Court have concluded). Nothing in the Fifth Amendment tells us whether regulatory takings (as opposed to physical ones) require just compensation or which ones do and which ones do not. And nothing in the text of the 14th Amendment tells us whether affirmative action is constitutional, whether women have the right to fight in combat, or even whether the Bill of Rights applies to the states. To all of those questions and thousands more the text is simply irrelevant to how judges rule in constitutional litigation. Text does not matter other than to suggest broad aspirations most of us agree with--free speech, free exercise of religion, equal protection, and due process, etc., but those texts become irrelevant to most if not all constitutional litigation.

Not only is the constitutional text irrelevant to constitutional litigation (as opposed to constitutional law) but the Court regularly imposes coercive, controversial, non-textual rules on the American public. The Court has held that, even if Congress is regulating "commerce among the states," it may not commandeer state executives and legislatures to assist it in enforcing federal law (though Congress can commandeer state judges). This anti-commandeering rule is nowhere in the Constitution's text.

The Court has created a doctrine of sovereign immunity where states are immune from federal lawsuits by their own citizens even thought the Constitution's text has no such rule. The Court has also imposed numerous rules on the relationship between the Congress and the Executive that are not in the text, such as the wholly non-textual major questions doctrine and strict rules regarding how Congress may set up and staff and federal agencies.

There is no federal equal protection clause, but the Court found one in the Fifth Amendment's due process clause, which says nothing about equal protection. 

The Court has also applied the following language in the First Amendment, "Congress shall make no law... abridging the freedom of speech," to apply to state administrative agencies such as the Texas Department of Motor Vehicles Board, which prohibited the Confederate flag on personalized license plates. Assuming the incorporation of the Bill of the Rights to the states is textually justified, how does the Court move from a provision limiting only the legislature to a provision limiting state executives and state executive agencies (or federal executive agencies)? It is quite simply textually impossible. But applying the First Amendment to state and federal agencies is good public policy and that is why the Court does so.

When federal judges refer to themselves as textualists when it comes to constitutional litigation, reach for your wallets. Constitutional litigation is almost always about hopelessly imprecise text. Federal judges who claim "the text made me do it," are not telling the truth.

So, if not text, what is constitutional litigation really about? Originalists would have you believe we can go back centuries and resolve hard questions that the founders never thought about by identifying the original meaning of the text. But of course there is no original meaning of the text relevant to contemporary disputes about the internet, assault weapons, drone strikes, the administrative state in a country much larger than 13 eastern states, and so on. And, on controversial issues today that the founders did consider, such as the proper relationship between the state and federal governments, the founders almost always disagreed then as much as we do today.

So if constitutional litigation is not about text, and history can't help us (it really can't), what is constitutional litigation really about (as opposed to constitutional law which is about the text)? Dean Chemerinsky answered this question 34 years ago: constitutional litigation "is, now and always, about values....There is nothing else."

The sooner we come to realize and accept, really accept, the differences between constitutional law which is about the text, and constitutional litigation which is about values, the sooner we can have a truly meaningful conversation about the appropriate role of the Supreme Court of the United States in our representative, constitutional democracy.