Textualism and Judgment

Abstract

Akhil Amar has written a provocative defense of textualism as a method of constitutional interpretation. In the book from which his essay is drawn, Professor Amar uses his textualist method to interpret the Bill of Rights and the Fourteenth Amendment, often reaching conclusions strikingly at odds with conventional interpretations. In my comments on Professor Amar's textualist exegesis, I first examine what he means by "textualism." I then focus on his textualist reading of one particular constitutional provision, the Ninth Amendment, which I believe leads to a historically inaccurate and impoverished interpretation. Finally, I ask how a scholar as careful and as thoughtful as Professor Amar could be so badly misled in his interpretation.