Teaching Students The Textualist Interpretation Of Law
In honor of Constitution Day (September 17th), this blog series invites teachers and leaders in the field of civics and democracy education to address the question: Why is it important to teach the Constitution? Our guest author today is David Said, a social studies teacher at Athens High School in Troy, Michigan. Other posts in this series can be found here.
In a fairly recent court case, Bostock v. Clayton County (2020), the US Supreme Court ruled 6-3 that sex discrimination does cover gay and transgender individuals under the Title VII of the Civil Rights Act. One of the more surprising aspects of this case was that the majority opinion was delivered by associate justice Neil Gorsuch. Appointed by President Trump to replace the late Antonin Scalia, most assumed he would tow the line of conservative jurisprudence. In joining with Chief Justice John Roberts and all three of the court’s liberal leaning justices, Gorsuch’s majority decision showcased a level of judicial independence that is important for the maintaining the integrity of this important institution.
A key part of Gorsuch’s judicial philosophy is grounded in a concept called “textualism.” Simply put, textualism is an interpretation of law in which the words of the legal text are analyzed through the lens of their normal meaning. It is quite common for Justices to include authors’ intent, historical examples, and most importantly precedence as factors when deciding a case that comes before the Supreme Court. Textualism appears to simplify this process altogether by requiring one to truly dig deep into the meaning of words and phrase. In the Bostock case, the word that Gorsuch zeroed in on was “sex” within Title VII of the Civil Rights Act. Discriminating against an individual or group because of their sex could reasonably be interpreted to include gender as well as sexual orientation. The six Justices in the majority agreed with that preceding sentence. Conversely, the Justices in the minority were quick to point out that members of the legislative branch were likely not thinking of anything beyond men or women in the year 1964.
How can this story and the use of textualism help our students better understand the Constitution?
First, any teacher would be quick to point the importance of literacy in content area instruction. Being a literate individual not only requires comprehension skills, but also the ability to critically decipher the meaning of words or phrases within a larger piece of text. The work of textualism is the work of all readers who seek solutions about critical issues in their society. It is vital, especially when teaching about the Supreme Court, to avoid the partisanship that is more easily applicable to the Legislative and Executive branches of government. Especially when under the scrutiny of the confirmation process, all Justices seek to portray themselves and stewards of the law, impartial, and unbiased in their decision making. Likewise, when reading our Constitution, our students should not be reading this document as a Democrat or Republican. Rather they, like our Justices, should be reading them as learners, thinkers, and one could argue as textualists.
Like in the Bostock case, textualism is especially particularly applicable to the issues of civil rights. For example, in my class, I have had students look at the equal protection clause of the 14th amendment. The clause itself stating, “nor deny to any person within its jurisdiction the equal protection of the laws.”When I ask students who has been most positively impacted by this clause, most are quick to point out African Americans. I follow up with asking who has been left out? Students respond with other marginalized groups and people of color. A discussion of the failure of Reconstruction and beginnings of Jim Crow will be coming soon enough. But in the moment, I ask my students to put themselves in the shoes of a Supreme Court Justice, putting bias aside as much as possible. Using the words of the clause alone, should the equal protection clause include every segment of the American population? This begins our journey into the mind of an interpreter of law, a textualist.
My advice when reading any part of the Constitution, is to teach students to put the text first. The ability to think critically requires all of us to put partisanship aside. For students to debate political issues amongst themselves, they must first attain the vital skill of having dialogue with the text of our founding document. This is the means of truly developing critical thinkers who are civic minded. I ask my fellow teachers to have students explore other areas of our Constitution. Have them analyze the ordinary meanings of as many words as possible. Maybe a future Justice in your classroom will identify a new pathway for imparting our Constitution’s values onto a new generation of leaders?