This above all: to thine own self be true.
—Hamlet
Few people today would view the statement above as anything but an adage worthy of veneration. It has, seemingly, achieved the status of an ethical principle or “value,” sound guidance for navigating past the daily obstacles to a successful, even moral, life. It translates into such contemporary mantras as to “be real” or “authentic,” to achieve the “best version” of ourselves, and above all else to be who we “are.” As long as one is “true to oneself,” one is better able to avoid the often pernicious influence of others. Not just the embodiment of personal freedom, it could even be regarded as a variant of the age-old call to “know thyself,” as we would seem to need to know who we are to be true to ourselves.
Not everyone is so certain of the worthiness of the principle, however, at least not in all cases. A famous economist with a penchant for stand-up comedy offered quite a different take when, at high school commencement exercises, he confessed to being at a loss about what advice to give the graduates. “Be yourself,” he noted, might not always be the best guidance for teenagers. His sardonic joke perhaps masked a more serious concern. The apothegm’s provenance, after all, is Shakespeare’s Hamlet, where it is spoken not by any right-thinking character, but rather the courtier Polonius, King Claudius’s advisor and a Machiavel through and through. Polonius is not just the bane of Prince Hamlet’s court life (and ultimately killed by him) but, as Shakespeare lets on, a co-conspirator in Claudius’s conspiracy to murder his brother and usurp the throne.
Perhaps even worse, Polonius utters our supposed moral principle while instructing his son Laertes how to get the better of his acquaintances in the dog-eat-dog world of Parisian society. In this context, “to thine own self be true” sounds positively immoral, an invitation to radical selfishness. Be true to oneself, Polonius seems to say, and oneself alone, not to one’s family or friends or country or (dare it be mentioned) God. Maximum personal advantage and advancement, not social good, are what matter.
A road to moral goodness or an invocation of grasping individualism? Same words; different meanings. The context matters, sometimes radically so. What may have seemed perfidious in Shakespeare’s day seems no longer so objectionable—maybe even good—in 21st-century America, at least for those beyond their teen years. For adults living in our individualized democratic and competitive capitalist world, freedom and the best life may demand a kind of personal selfishness, making the latter something of a virtue. Whatever the explanation, there is no question the statement can be evaluated and understood only in terms of who is saying it, to whom, and for what purpose. Intent, for example, makes a difference, which sometimes cannot be gleaned just from the words themselves, consistent as they are with two, or even more, very different meanings.
It’s hard to believe that what’s true for statements from Shakespeare is not also true for the provisions of our Constitution, drafted less than two centuries later. Or so former Justice Stephen Breyer may wish to remind us in Reading the Constitution: Why I Chose Pragmatism, Not Textualism (Simon & Schuster 2024). In his after-the-fact attempted takedown of the “textualists” that bedeviled him while he was on the Court, Justice Breyer insists that textualism fails to give proper consideration to the intention of the words of the Constitution and their full context. These are often equivocal, and interpretations of them can become tendentious, unless one understands and pays respect to the circumstances in which they were written, as well as those in which they are to be applied. He convincingly demonstrates that context, whether to be found in intention or outcome, is vital to a fair and proper understanding of any constitutional provision.
Nor is this the only sin in textualism, according to Justice Breyer. The absence of context is part and parcel of, and fortified by, a series of other defects in this contemporary and now predominant mode of analysis. These range from the fact that the Constitution uses “general” words that do not lend themselves to easy or even any kind of exact interpretation, to textualism’s preference for narrow, dogmatic rules rather than properly flexible standards, the absence of consistency, the inability of judges to do justice to the historical meanings of words, and textualism’s inability to give us consistent rules for the proper application of stare decisis. In this last case, says Justice Breyer, it seems that there is no basis in textualism for when a precedent should be upheld or not, thereby undermining that time-honored concept, so vital to the common-law decision-making process in American law.
It is difficult to quarrel with many of these criticisms, borne out as they are by our recent experience of the Supreme Court’s interpretation and application of the Constitution. Think, for example, how precedent has recently been applied or dismissed independently of the text. In Dobbs v. Jackson Women’s Health Organization, for example, the Court saw little value in the precedent of Roe v. Wade, let alone the 50 years of jurisprudence that arose under it, regarding a claimed right to an abortion under the Constitution. Instead, it imposed the supposed requirements of its own theory of “originalism” (an offshoot of textualism, according to Justice Breyer) in overruling it. In United States v. Trump, however, the Court seems to have viewed two prior decisions of the Court on presidential immunity as essentially dispositive, notwithstanding that presidential immunity is never mentioned in the Constitution and that the prior precedents covered only analogous matter. Meanwhile, textualism seems to offer no help, even in cases in which there is constitutional language. Everyone who opined on the question of whether a former president can be impeached, or tried upon an impeachment, seemed to believe the constitutional text held the answer, but few agreed what the words themselves meant.
Like so many interpreters of the Constitution, Justice Breyer reverts to quoting as definitive Chief Justice Marshall’s reminder in McCulloch v. Maryland that “we should never forget it’s a constitution we are expounding” (emphasis in the original). He somehow takes this to impose on us the need for an interpretation that favors “workability” and “pragmatism” and “purpose-oriented” decision-making. He advocates on this basis the use of “judicial instinct, likely informed by experience,” and does a review of his own decisions in cases in which he contends that this approach, which mostly did not prevail, would have ensured a superior outcome.
Yet, the supposed superiority of his approach, or preferred outcomes, is hardly self-evident. Nor is it even clear what it comprises. The great chief justice never uttered any of those catchwords. More to the point, a “purpose-oriented” approach necessarily requires a decision on what the purpose is, and Justice Breyer merely assumes his purposes, in gross and in fine, are the correct ones, a conclusion with which his former antagonists on the Court would hardly agree. Even invoking the weighty word “democratic,” as Justice Breyer is wont to do, does not advance the ball. There are, to be sure, many different definitions of “democracy” or views in specific cases of what’s “democratic” and what’s not, and Justice Breyer never graces his readers with any explication of what he believes meets that standard. To the same effect are his references to what “holds us together” or what is “humanistic” or what may be “pragmatic,” in any general or principled sense.
Even more perplexing is his suggestion that, as the times change, “important values have to change.” He does not say which social changes warrant a change in the “values” he mentions, which he also does not describe clearly, nor of course in what way or how they might change, or which such changes would be good and which bad. And whose understanding of these values? The majority’s? The founders’? The textualists’?
It might be said that the sole virtue, if that is what it is, of Justice Breyer’s approach is that in following his own “judicial instinct, likely informed by experience,” he is merely doing out loud what the textualists are doing sub silentio. Unless it’s the other way around. The textualists seem to claim that the context is to be supplied by laws written in the 18th century. But what those tell us is mostly unclear too, and the textualists need to say why they are not subject to change or the processes of the Constitution anyway. Justice Breyer’s claim to a purpose-oriented approach is centered in his own policy biases. Both approaches seem to be following what really is a kind of intellectual prejudice about what the Constitution should mean, and how it operates, rather than what it was intended to or does mean.
But where, then, is one to find a way of expounding the Constitution that rises above flaccid constitutional theorizing that’s neither a bold nor a hugger-mugger attempt at imposing an a priori point of view? Perhaps start with what the textualists and Justice Breyer both claim to be doing. This is expounding the Constitution. They both want somehow to be true to the document itself. They both claim that the drafters of the American Constitution had a reason for saying what they did and that the goal of constitutional decision-making is somehow to give effect to their preferences, at least as a starting point. But if neither too great a reliance on mere words nor the substitution of generalized notions of the good for real context is the right way to go, what is?
Focus for a moment on the second part of Marshall’s famous adage. What is a constitution, anyway? Marshall seems to believe that this type of document is of a particular, even peculiar, sort. So, apparently, did the founders themselves, writing it down and signing it as a statement of their own about what constitution the American people should have. They even made it difficult to amend, so as to give it some permanence. The ratification conventions too thought what they were doing was fundamental to their political lives. But fundamental in what way? To repeat, what is a constitution exactly?
Marshall doesn’t tell us much himself, except in the negative. A constitution, he says, is not a “law,” or even a code of laws. He doesn’t even tell us why the Supreme Court, more than any other part of the government, is the body authorized to expound it. Those who revert to Marbury v. Madison to explain that phenomenon seem not to notice that the statement about judicial review in that decision—“It is emphatically the province and duty of the judicial department to say what the law is”—is a statement about law, not a constitution, even if a constitution provides somehow the, or at least a, highest or most fundamental law in some respect. Moreover, if one wants to stay within the document and its own context, rather than the great chief justice’s interpretation of it, we ought to look first to the words of the Constitution to see what it’s actually about, as well as the circumstances in which it was adopted, as opposed to what a later figure who worked under the umbrella of the document says about it and his own powers.
Justice Breyer might dismiss this approach, as many do, as “originalism,” but if it is, it is of a different ilk from what he condemns as such, as it derives not from textualism, but the other way around. That is, the text is understood in light of the original intention, not the intent from the words. It stands to reason that if we are to pay respect to and actually expound the Constitution, we ought not to ignore what a constitution is and what ours is about, not to mention how it was intended by those who wrote it. This might not be the end of the story, but it seems a proper beginning.
Two elements of the Constitution as originally written stand out. First, it is primarily a statement of procedures. It tells us what the three parts of the government are to be, how the people who occupy those roles are to be elected or appointed, and what powers they are to have. What follows are a handful of restrictions on what those departments can do and a few statements about how their powers should be applied. Almost nothing is said about what is to be produced by the activities of that government, let alone the laws that are passed by Congress, how they are to be “faithfully” executed by the presidency, or in what way the courts should interpret them. All of this is merely implied or just left unsaid. Courts, for example, have the “judicial power,” whatever that is.
Second, and relatedly, it does not set out anyone’s rights. Indeed, the original text of the Constitution written in 1787 never uses the word “right” but once, in the context of copyrights. To be sure, there were later added amendments that did describe those rights, but the first 10, called the Bill of Rights, are careful not to say that any of these rights is given by or limited to those in the Constitution. Rather, the Constitution acknowledges them as something that preexists, something natural to us as human beings, not afforded by constitutional grant. All of this seems somewhat foreign to the approach of both Justice Breyer and the textualists, who seem to think that the Constitution provides the substance of our rights and liberties, rather than somehow the manner in which those rights are to be affected by the constitutional processes specified.
The founders’ procedural approach is consistent with the notion of a “constitution” from their own forebears. In the history of political philosophy that the founders studied, a “constitution” is not a set of laws, but a structure of government. It is how the government is constituted, the form of the regime, and its operational terms, neither specifying the matter it is to act upon nor, in most cases, limiting what are the specific outcomes that may be produced. It is a rather clear expression of the “natural rights” theory of the liberal democratic theorists—Hobbes, Locke, Montesquieu, Blackstone, and others—as pithily set out in the Declaration of Independence. The Constitution is the “government [that is] instituted among men, deriving its just powers from the consent of the governed.” The goal is to “secure” people’s “unalienable rights,” which exist by nature and include “life, liberty, and the pursuit of happiness.”
Rights are from nature; the Constitution is a form of government that protects them. Most daily activity is the business of the governed and not the government, a matter of their own privacy and free decision-making, if you will. The government may interfere, but only pursuant to the procedures of the Constitution, to carry out the broad goals set out in the Constitution’s preamble. The results are not limited to what existed previously so long as the constitutional processes (and the limits on them) are respected. What’s permitted or proscribed by law in the 18th century may not be suitable in the 21st, and the Constitution prescribes how the change may legitimately be effected.
The meaning of the text exists within this context. Expounding the constitutional intent ought to be a matter of figuring out how the governmental activities described are designed and permitted to protect the governed’s natural rights. Pace Justice Breyer. Moreover, the founders seemed not to believe there was any ordinary evolution to be had in these powers, certainly not as a result of any vague change in “values” or one’s “judicial instinct.” Nor, with few exceptions, was it specifying what laws are to be made or enforced; only how they could be created. The founders seemed to believe they had found the best set of procedures, scheme of government, to make the changes necessary to protect preexisting rights in the interest of broad social goals. The procedures, certainly, could require change, which was to be handled by an amendment to the Constitution. The rights perhaps not, and certainly not through a mindless or poorly considered attachment to mere words, let alone anyone’s “judicial instinct” in construing a document that does not specify them.
How does this work in practice? It’s not simple, of course, but the meaning of the text derives from the overarching structure and intent. Take United States v. Trump. The founders set up a “presidency” governed by certain procedures in its election and operation. To answer the question posed by Trump concerning presidential immunity, one should begin with what a presidency is and what it is meant to do within the greater whole of that document. Both the majority and the dissents in that case affected to be basing their views on that, but not very many of the words they cast upon the subject went beyond general statements such as that the founders wanted a “vigorous” executive (as the majority said) or that a president is not a king (so said the dissenters).
In reality, the founders had very specific notions of what the presidency was to be and how it would operate within the larger context of a, or the, Constitution as a whole. To merely reference “executive” power, calling it vigorous or limited, by no means exhausts what is required to expound the Constitution. It presents more question than answer. Not to study instead what underlying notion the founders had in this case and in all others is no way to expound what our Constitution means and was intended to do.
