At Dorf on Law, Eric Segall: The Supreme Court, First Amendment Foolishness, and the Irrelevance of Text to Constitutional Litigation. From the introduction:
Although this blog post is devoted exclusively to the first amendment, the discussion of how far the Court has strayed from the plain meaning of the text applies across constitutional law, as I showed here in a much longer piece. For example, I won't discuss in this post the invisible federal equal protection clause, the invisible anti-commandeering clause, and the Court's decisions turning around the clear text of the 11th Amendment to mean the opposite of what it actually says, and so much more. Today, is first amendment day here at Dorf on Law.
The first amendment says the following:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Let's begin with the first word, "Congress." That term is neither ambiguous nor imprecise. It refers to a specific institution: the United States Congress. Yet, the first amendment's speech and religion protections have been applied to all government institutions, state and federal, including the executive and judicial branches.
It is one thing for the Court to hold that the 14th Amendment applies the first amendment to the states, a reasonable (if not persuasive) interpretation of the text and history of the 14th Amendment. But it is quite another to read the text of the first amendment and apply it to the President, a governor, or a state judge. The word "Congress" simply can't bear that meaning.
So, what does the Court do? Ignore the issue altogether and apply the protections of the first amendment to all government institutions, federal, state and even local, though the text can't bear that weight.
The actual text does not matter. …
And from later on:
The text refers to "no law." But, of course, no can't mean no so we ignore it. If the word "no" meant "no" then perjury laws, state and federal, would be unconstitutional (I will get to religion below), as would many laws prohibiting bribery and treason that prohibit speech if done for a certain purpose. But doesn't no mean no?
As is often the case with Professor Segall's posts, I sort of agree and sort of don't. I agree that sometimes the Court gets far afield from the text (as in the application of the equal protection clause to the federal government), and for that it should be criticized. But also, often the most plausible reading of a text derives from context as well as just from the supposedly plain language on its face. (See here on Justice Scalia's methodology, and here more generally). Textualist originalism asks what the text meant to informed readers at the time of enactment. Does Professor Segall really suppose that informed readers of the First Amendment in 1791 thought it prohibited punishment of perjury? Literalism, ignoring context, leads at times to odd results — which is why few people endorse it.
At the same time, the claim that "the actual text doesn't matter" — read to mean it never matters — seems a difficult claim to defend, particularly with the current Court. Does Professor Segall suppose that if there were no Second Amendment, the Court would still insist on the right to bear arms applied in Heller? Does he suppose that if the Constitution's text directly stated the right to abortion, the Court would find a way to deny it? Those would be extraordinary claims, for which I see no evidence. Text matters (but it is not necessarily the end of the matter).
As to "Congress shall make no law…", I have some specific thoughts which I hope to post in due course. Again, I sort of agree with Professor Segall and sort of don't.
UPDATE: Eric Segall responds:
Yes, without the Second Amendment I absolutely believe the Court would have found an unenumerated right to own guns and the Court’s 11th Amendment cases show the Court will flatly ignore and discard unambiguous (and not absurd) text. If text only matters when the justices say it does, which is where we are, does it matter at all?
Posted at 6:05 AM