Take a look at this new article, titled A Mostly Purposivist Century: Constitutional Interpretive Theory in the 1800s (H/T Legal History Blog).

Resounding in the debate between textualists and purposivists, is a pervasive, if subtle, historical narrative that figures purposivism as a twentieth-century phenomenon and textualism as a new-and-improved version of the text-focused, plain-meaning interpretation that predominated in the nineteenth century.This account gives textualists the historical high ground – the safe, traditional, and conservative choice – and puts purposivists in the position of having to defend a relatively recent and comparatively radical position.

This accuracy of this account is belied, however, by nineteenth-century judges’ methods of constitutional interpretation, as expounded by treatise writers of the era. Their theories can be categorized in three groups, none of which is more than superficially textualist. First was an approach popularized by Joseph Story in mid-century that I call plain meaning purposivism. These thinkers embraced a strong plain meaning rule and a text-focused interpretive framework, but they founded their approach on a set of strongly intentionalist and purposivist notions of the overall meaning of the Constitution. This school was followed after the Civil War by a more direct form of purposivism that I refer to simply as conventional purposivism. These purposivists softened the plain-meaning purposivists’ meaning rule and counseled interpreters to more freely use extratextual indicia of constitutional and legislative intent. By the 1880s, a third and non-purposivist group had evolved: evolutionary constitutionalists. In their view, the Constitution should be interpreted not with regard to original intention but with a Burkean, Spencerian understanding of the nation’s evolving cultural, social, and economic character.

The nineteenth century, then, was a mostly purposivist age. It was an era in which purposivism, in contrast to evolutionary constitutionalism, was the textually conservative choice, and in which textualism, which is founded on the fundamental rejection of intentionalism, did not exist. An understanding of this history is particularly pertinent today, as our interpretive discourse stands poised to discard purposivism and enter an age of textualist consensus.

Reading many cases from the 19th Century led me to understand, at least informally, that Judges always looked to the intentions of the drafters of laws, and seldom employed what we would today consider textualism, or original public meaning originalism.

So if the generation closest to the time of the founding used a purposivist constitutional interpretation methodology, why shouldn’t we? Can Conservatives really hold the mantle of textualism as a return to an august and noble former of constitutional interpretation?

The author argues in the conclusion:

The most striking observation to be drawn from this history is that today’s purposivism, far from being a twentieth-century oddity, fits within an intentionalist and purposivist tradition beginning with Blackstone (if not before) and continuing through the nineteenth century. The deeply rooted intentionalism of the era prohibits any deep similarity with textualism; which resembles plain meaning purposivism only in its careful, rule-based textual analysis.

Of course, the historical predominance and relative conservatism of purposivism in the nineteenth century cannot determine our choices today. But it provides a bit of valuable perspective and challenges us to examine our assumptions about the prehistory of the interpretive approaches today. At the very least, it should force textualists to acknowledge that their theoretical approach is not a conservative return to a wiser era that predated purposivism, but rather a bold departure from an established—if dynamic—purposivist tradition. Maintaining such a discussion would be particular valuable today, as our interpretive community faces the prospect of a new textualist consensus.

I’m not quite ready to concede this argument. Of the many reasons Judges champion textualism, the historical pedigree of this interpretive methodology is usually not one of the strongest points. Even if Judges in the 19th Century interpreted the Constitution a certain way, that method was not necessarily the best way. Stare Decisis need not apply to Constitutional interpretation in this sense.

But, an interesting article nonetheless. I am also reading Brian Tamanaha’s Beyond the Formalist-Realist Divide. These two pieces go well together in shedding new light on how Judges actually worked in the so called Gilded Age.