Intratextualism

Harvard Law Review

Volumn 112, Issue 4, 1999, Pages 748-827

  Amar, Akhil Reed ^a  

^a YALE UNIVERSITY   (United States)

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EID: 0346333609     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1342297     Document Type: Article

References (327)

1. A more detailed roadmap may be helpful here. Part I illustrates intratextualism by surveying landmark cases and commentaries for traces of this technique in various forms. Part II critiques intratextualism by comparing and contrasting it to other modes of interpretation, and by candidly assessing the general strengths and weaknesses of this technique and its variations. Part III applies intratextualism by using it to rethink three of the most important and most challenging constitutional questions that have arisen over the last decade - an exercise designed to show how powerful and elegant the technique can be when used well.
2. 17 U.S. (4 Wheat.) 316 (1819).
3. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
4. Brown v. Board of Educ., 347 U.S. 483 (1954).
5. Roe v. Wade, 410 U.S. 113 (1973).
6. A couple of other possible candidates are New York Times v. Sullivan, 376 U.S. 254 (1964), and Griswold v. Connecticut, 381 U.S. 479 (1965), and I shall also offer a few passing thoughts about these cases. A superb general discussion of canonicity in constitutional law may be found in J.M. Balkin and Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 964 (1998). Specific evidence supporting my particular selection of canonical cases today may also be found in this essay. See id. at 973-75 & n.43 (identifying the handful of cases that appear in all or virtually all major constitutional casebooks).
7. 14 U.S. (1 Wheat.) 304 (1816). Because of the towering importance of Martin in its own right, and alongside McCulloch, we shall closely examine Story's landmark precursor to Marshall's masterpiece.
8. Bolling v. Sharpe, 347 U.S. 497 (1954).
9. For a brilliant general discussion of these argument types, see PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION (1982).
10. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 412 (1819).
11. Note that, contrary to what many seem to think, Marshall does not claim that the Necessary and Proper Clause adds anything to congressional power or constitutes some free-standing font of federal authority; rather, he claims only that the clause does not diminish congressional powers conferred elsewhere in Article I. In the end, he professes to be agnostic whether the clause was designed to "enlarge" - or instead merely to confirm and "remove all doubts" about - the breadth of enumerated power conferred by earlier clauses. Id. at 420-21. The declaratory, doubt-removing reading of the Necessary and Proper Clause finds strong support in THE FEDERALIST No. 33 (Alexander Hamilton) and No. 44 (James Madison). For more discussion, see Akhil Reed Amar, Constitutional Redundancies and Clarifying Clauses, 33 VAL. U. L. REV. (forthcoming 1999) [hereinafter Amar, Clarifying Clauses].
12. U.S. CONST. art. I, § 8.
13. McCulloch, 17 U.S. at 420.
14. See id.
15. Id.
16. See id. at 402-05.
17. Id. at 406-07.
18. Id. at 407.
19. Id.
20. See id. at 426. Marshall's words here are memorable: There is no express provision for the case, but the claim has been sustained on a principle which so entirely pervades the constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it, without rending it into shreds. Id.
21. See id. at 426-33.
22. See CHARLES L. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 22 (1969) (stating that to succeed, structural argument "has to make sense - current, practical sense"); BOBBITT, supra note 9, at 74 (stating that structural arguments often "embody a macroscopic prudentialism drawing not on the peculiar facts of the case but rather arising from general assertions about power and social choice").
23. McCulloch, 17 U.S. at 415-18 (emphasis altered).
24. Id. at 408.
25. Id. at 407-08.
26. Id. at 401.
27. See id. at 353 (argument of Attorney General William Wirt), 380-81 (argument of William Pinkney).
28. Id. at 423 (opinion of the Court) (emphasis added).
29. Id. at 430 (emphasis added).
30. BOBBITT, supra note 9, at 93-119.
31. This argument might also be deemed structural, focusing on the relationship between the electors and the elected. We the voters have confidence in our representatives and let them tax us precisely because we chose to vote them in and can choose to vote them out (a fact that concentrates their minds wonderfully): "The only security against the abuse of [taxation] power, is found in the structure of the government itself. In imposing a tax the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation." McCulloch, 17 U.S. at 428 (emphasis added). There are also traces of this idea in specific constitutional clauses -for example, the Direct Tax Clause of Article I, Section 2, which provides that direct taxes and congressional representation be apportioned by the same formula. It should not be surprising that different techniques of constitutional interpretation often overlap and converge. The various types of argument are not sealed off from each other, and ultimately they are all mere tools to help us draw meaning from the same source - the American Constitution in word and deed.
32. McCulloch, 17 U.S. at 402.
33. Id. at 404-05.
34. Like all lawyers of his generation, Lincoln had surely read McCulloch as a young man, and perhaps many times thereafter. For a brilliant discussion of other sources of influence on Lincoln's famous phrasing, see CARRY WILLS, LINCOLN AT GETTYSBURG 107-08, 129-31, 281 n.24 (1992).
35. McCulloch, 17 U.S. at 407-08.
36. Id. at 413.
37. Id. at 414.
38. As Marshall graciously acknowledges, the argument he is about to make borrows from William Pinkney's oral argument, see id. at 387-88, which Justice Joseph Story described as "brilliant and sparkling," and which the historian Charles Warren labeled "the greatest effort of [Pinkney's] life." 1 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 507-08 (1922).
39. Marshall himself later called Pinkney "the greatest man I ever saw in a Court of justice." 14 DICTIONARY OF AMERICAN BIOGRAPHY 626, 628 (Dumas Malone ed., 1934) (citation omitted).
40. McCulloch, 17 U.S. at 414-15.
41. Apart from a pair of proper citational references to Publius's Federalist, and a few stray stylistic tics, the only words italicized in the opinion are absolutely, necessary, proper, and constitution (the latter in Marshall's celebrated reminder that "it is a constitution we are expounding"). McCulloch, 17 U.S. at 407, 413, 414, 418; see also id. at 408, 410, 415 (tics); id. at 431 (capitalizing word, "CONFIDENCE").
42. U.S. CONST. art. V.
43. U.S. CONST. art. II, § 3.
44. McCulloch, 17 U.S. at 418.
45. Id. at 422.
46. Of course, a contrarian might concede that both clauses should be read the same way, but insist that both be read narrowly. But as Marshall argues, no one has taken this position regarding territorial corporations, which stand as fixed landmarks in the legal landscape. Note how Marshall's intratextual analysis here dovetails with an implicit argument from settled practice.
47. Virtually, but not exactly. Whereas the Territories Clause confers plenary power on Congress - if Congress cannot legislate, no one else can - the Necessary and Proper Clause must be read against the backdrop of state legislative power to regulate. Indeed, Marshall admits that the Necessary and Proper Clause may not add any power at all to the preexisting enumerations, and he also admits that these enumerations fall short of granting Congress plenary legislative power in the states. See McCulloch, 17 U.S. at 405, 420-21. How might Marshall square all this with his intratextual linkage of "necessary" and "needful" in the two clauses? Perhaps by saying that the key constraints in the Necessary and Proper Clause exist not by dint of the flexible word "necessary," but because of the other words in the clause - "and proper for carrying into Execution the foregoing Powers." U.S. CONST. art. 1, § 8, cl. 18. For a general discussion of these other words and the constraints they may impose, see Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267 (1993).
48. Or more precisely, to Marshall and the notable lawyer William Pinkney, see supra note 38.
49. 14 U.S. (1 Wheat.) 304 (1816).
50. 1 LIFE AND LETTERS OF JOSEPH STORY 275-76 (William W. Story ed., 1851).
51. We cannot rule out the possibility - perhaps probability - that although Marshall had recused himself in the Martin case, he nonetheless discussed issues of substance and style with Story. But of course that possibility exists for every non-Marshall opinion handed down in the Marshall era. Thus we shall also examine more recent cases and legal commentary for traces of intratextualism, lest it be thought that the technique was unique to the Marshall Court.
52. Martin, 14 U.S. at 324.
53. Id.
54. Id. at 325.
55. U.S. CONST. art. III, § 1.
56. Martin, 14 U.S. at 328-29.
57. See id. at 329-30.
58. Id.
59. U.S. CONST. art. III, § 2, cl. 1.
60. Martin, 14 U.S. at 332-33. In the middle of this passage, Story offers up a textbook illustration of the much misunderstood idea of "the exception that proves the rule."
61. Id. at 333-34.
62. See Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205, 210-13, 240-46 (1985) [hereinafter Amar, Two Tiers].
63. See Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. CHI. L. REV. 443, 478-88 (1989) [hereinafter Amar, Marbury];
64. Amar, Two Tiers, supra note 61, at 242-43, 254 n.160.
65. As I shall explain later, I am ultimately less interested in classifying these moves and more interested in recognizing some of their strengths and weaknesses. See infra Part II.
66. 5 U.S. (1 Cranch) 137 (1803).
67. U.S. CONST. art. III, § 2, cl. 2.
68. Marbury, 5 U.S. at 174.
69. Id. at 174-75.
70. DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT 68 (1985).
71. William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1, 31.
72. MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 11 (1980).
73. U.S. CONST. art. III, § 2, cl. 2.
74. For those with a special interest in the Rosencrantz-and-Guildenstern-size topic of original jurisdiction, see Amar, Marbury, cited above in note 62, at 453-63, featuring an intratextualist analysis of the Judiciary Act to cast doubt on the Court's reading of Section 13. This analysis illustrates that intratextualism can be used as a technique of statutory as well as constitutional interpretation. My topic today, however, is the latter, and some of the arguments I shall consider concerning constitutional intratextualism may not apply straightforwardly in the statutory context. See infra note 204.
75. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).
76. Id. at 180.
77. The joke stitches together snippets of Matthew 27:5 and Luke 10:37.
78. Records of the Philadelphia Convention - not published until decades after Marbury - confirm that the parallel language here was no accident but part of a conscious design in contemplation of judicial review. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 430-31 (Max Farrand rev. ed., 1937) (rewording the Supremacy Clause to render it "conformabl[e]" to wording of the federal question jurisdiction clause) [hereinafter FARRAND]. On the possible similarities and differences between intratextualism and standard forms of "original intent" jurisprudence, see Part II below.
79. 347 U.S. 483 (1954).
80. 347 U.S. 497 (1954).
81. Id. at 499.
82. See id. at 500.
83. Korematsu v. United States, 323 U.S. 214 (1944), cited in Bolling, 347 U.S. at 499 n.3.
84. Hirabayashi v. United States, 320 U.S. 81 (1943), cited in Bolling, 347 U.S. at 499 n.3.
85. Scott v. Sanford, 60 U.S. (19 How.) 393 (1857).
86. See Bolling, 347 U.S. at 499 ("[T]he Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race." (quoting Gibson v. Misssissippi, 162 U.S. 565, 591 (1896))).
87. Id. at 500.
88. Id. at 499.
89. Plessy v. Ferguson, 163 U.S. 537 (1896).
90. Brown v. Board of Educ., 347 U.S. 483, 495 (1954) ("We conclude that in the field of public education the doctrine of 'separate but equal' has no place.").
91. Bolling, 347 U.S. at 499.
92. Id. at 500.
93. Gibson v. Mississippi, 162 U.S. 565, 591 (1896), quoted in Bolling, 347 U.S. at 499.
94. Id.
95. U.S. CONST. amend. XIV.
96. Scott v. Sanford, 60 U.S. (19 How.) 393, 407 (1857).
97. Gibson, 162 U.S. at 591. It might be asked whether this reading of the Citizenship Clause renders the neighboring Equal Protection Clause redundant. Technically, it does not - the former clause applies only to citizens, whereas the latter encompasses all persons, with a special concern for aliens. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 171-74 (1998) [hereinafter AMAR, BILL OF RIGHTS]. More generally, however, certain constitutional clauses may well be seen as declaratory, making explicit what is only implicit in other clauses. Marshall in McCulloch argued that the Necessary and Proper Clause, for example, might merely be declaratory. And so, I would argue, is the Tenth Amendment In addition, many of the specific criminal procedure provisions of the Fifth and Sixth Amendments might be seen as declaratory glosses on the sweeping Due Process Clause.
98. For more discussion of the ubiquity of declaratory clauses, see Amar, Clarifying Clauses, supra note 11. See also infra pp. 773.
99. Bolling, 347 U.S. at 499-500.
100. U.S. CONST. art. I, § 9, cl. 3.
101. Id. at cl. 8.
102. Id. at § 10, cl. 1.
103. See generally GORDON WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION (1992) (chronicling "the democratization of early America");
104. Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 U. COLO. L. REV. 749, 749 (1994) ("The central pillar of Republican Government . . . is popular sovereignty.");
105. J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2316 (1997) ("[T]he Constitution is committed to the realization of democratic culture, even though constitutional law . . . cannot realize this goal by its own efforts.").
106. U.S. CONST. art. III, § 3, cl. 2.
107. For more extended argument for, and analysis of, this claim, see Akhil Reed Amar, Attainder and Amendment 2: Romer's Rightness, 95 MICH. L. REV. 203, 208-17 (1996).
108. See RICHARD KLUGER, SIMPLE JUSTICE 522 (1994).
109. See Frederick Douglass, Speech Delivered in Glasgow, Scotland (March 26, 1860), in 2 LIFE AND WRITINGS OF FREDERICK DOUGLASS 467-80 (Philip Foner ed., 1950).
110. See Laurence H. Tribe, Taking Text and History Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1298-99 n.247 (1995).
111. Bolling v. Sharpe, 347 U.S. 497, 500 (1954).
112. The notion of a "best" intratextual argument, of course, presupposes a theory of intratextualism and a calculus by which to compare intratextual arguments. For discussion of how one would assess the strengths and weaknesses of a given intratextual argument, see Part II below.
113. For more elaboration and documentation of this claim, and my other claims in this paragraph, see AMAR, BILL OF RIGHTS, cited above in note 95, at 280-83,
114. Akhil Reed Amar, Constitutional Rights in a Federal System: Rethinking Incorporation and Reverse Incorporation, in BENCHMARKS: GREAT CONSTITUTIONAL CONTROVERSIES IN THE SUPREME COURT 71 (Terry Eastland ed., 1995).
115. Note that this is not full-blown substantive due process, in which the argument would be that because law is in its nature good and just, any enactment which (in the minds of judges) is not good is not "law." By contrast, the equality argument sounds more in procedure - the legislative process must be suitably general and prospective. A proper lawmaking procedure may generate a broad range of substantive results, but must apply to all (or more modestly, must not single out individuals for special disfavored treatment). On this procedural view, due process of law focuses on both law-making procedure and law-applying procedure, on process writ large and process writ small.
116. CONG. GLOBE, 39th Cong., 1st Sess. 1034 (1866); see also infra p. 825 (quoting this draft).
117. Gibson v. Mississippi, 162 U.S. 565, 591 (1896).
118. Id. (emphasis added).
119. 410 U.S. 113 (1973).
120. Id. at 153.
121. Id.
122. See id. at 130-31.
123. See id. at 141-44.
124. See id. at 144-46.
125. See id. at 146-47.
126. See id. at 136-41 (discussing the general evolution of abortion rules under English statutory law and American law).
127. Id. at 156-57. Whether indeed this result would plainly follow is debatable. See infra pp. 776-77.
128. Id. at 157-58 (citations omitted).
129. Id. at 157 n.53.
130. Note that the law at issue in Roe heaped its criminal sanctions not on the pregnant woman but on doctors and third parties. See id. at 117 n.1, 151 & n.49, 158 n.54.
131. See AMAR, BILL OF RIGHTS, supra note 95, at 119-22.
132. Roe, 410 U.S. at 156-57.
133. It is possible to imagine an omission/commission distinction here, but such a distinction would be problematic in considering a nine-month pregnancy involving tightly intertwined acts and omissions. If a woman engages in otherwise ordinary activities that threaten the health of the fetus - smoking, drinking, overexercising, and so on - are these "actions" really so different from the "inactions" of refusing to eat properly, or to take needed vitamins? What if, prior to conception, the woman has had doctors place under her skin a hormone-affecting implant that, unless actively removed, will cause the death of the fetus? Should we legally and morally distinguish between ingesting a pill that will withhold the mother's biological life-support from the fetus, and refusing to ingest a pill needed to save the life of the fetus? Note also that in one of the most significant moral actions undertaken by parents-to-be - the sex act itself - men and women may not be identically situated. Sex in the absence of full consent by the woman is much more common than sex in the absence of full consent by the man. Thus one could argue that conscription of fathers' kidneys is actually easier to justify than conscription of mothers' wombs. By discussing kidneys rather than violinists, I mean to avoid some of the criticisms that Judge Posner, in the pages of this Law Review, has recently leveled at the famous abortion analysis offered by Judith Jarvis Thompson. See Richard Posner, The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637, 1675-76 (1998)
134. (critiquing Judith Jarvis Thompson, A Defense of Abortion, 1 PHIL. & PUB. AFF. 47 (1971)).
135. Roe, 410 U.S. at 157 n.54.
136. See id. at 129-47.
137. Id. at 153.
138. Id. at 139 (emphasis added).
139. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 928-29 & n.4 (1992) (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part) (analyzing abortion laws from the perspective of women's equality, and citing works by Professors Laurence Tribe, Reva Siegel, Cass Sunstein, Catharine MacKinnon, and Jed Rubenfeld).
140. A critic might concede that Roe's use of intratextualism is "clever," but might see it as "too clever by half - more clever than wise or sound. For a more general discussion of this criticism, see section II.D below at pages 799-801.
141. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).
142. See id. at 11-41.
143. See id. at 87-101.
144. See id. at 11-41.
145. See id. at 15.
146. See id. at 23-24.
147. See id. at 24.
148. For documentation, see AMAR, BILL OF RIGHTS, cited above in note 95, at 217 n.*.
149. 88 U.S. (21 Wall.) 162 (1875).
150. Id. at 174.
151. See ELY, supra note 134, at 24-25.
152. For a different account, critiquing Ely, see AMAR, BILL OF RIGHTS, cited above in note 95, at 171-74, 364-65 n.42.
153. See ELY, supra note 134, at 33.
154. See id. at 34-35.
155. For my own thoughts here, see AMAR, BILL OF RIGHTS, cited above in note 95, at 119-24.
156. Several of our youngest generation of constitutional scholars have offered prominent and attractive examples of intratextualism. See, e.g., Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1175-86 (1992) (providing extensive intratextual analysis of the Vesting Clauses);
157. Vikram D. Amar, Jury Service as Political Participation Akin to Voting, 80 CORNELL L. REV. 203, 222-46 (1995) (providing extensive intratexual analysis of various similarly worded voting amendments) [hereinafter Vikram Amar]. Our most prominent constitutional scholar and litigator has also recently used intratextualism in a particularly powerful and elegant way to address one of the most important constitutional issues of the last quarter-century.
158. See Laurence Tribe, Dialogue: The Independent Counsel, SLATE (Oct. 1, 1998) 〈http://www.slate.com〉 (online discussion with Akhil Reed Amar) (analyzing the Article II, Section 4 Impeachment Clause phrase, "Treason, Bribery, or other High Crimes and Misdemeanors," by intratextual contrast with the Article I, Section 6 Arrest Clause phrase, "Treason, Felony and Breach of the Peace," and the Article IV, Section 2 Interstate Extradition Clause phrase, "Treason, Felony or other Crime").
159. See C. C. Langdell, The Status of Our New Territories, 12 HARV. L. REV. 365 (1899);
160. Abbott Lawrence Lowell, The Status of Our New Possessions - A Third View, 13 HARV. L. REV. 155 (1899).
161. See Downes v. Bidwell, 182 U.S. 244, 248-85 (1901) (considering whether duties imposed on items imported from Puerto Rico were valid after the United States acquired Puerto Rico as a territory, and "the broader question of whether the revenue clauses extend of their own force to our newly acquired territories"); Dooley v. United States, 182 U.S. 222, 230-36 (1901) (examining the validity of various duties imposed on goods imported from the United States to Puerto Rico after the military took possession of the island); De Lima v. Bidwell, 182 U.S. 1, 174 (1901) (considering whether a United States territory acquired from a foreign power constituted a "foreign country" for the purposes of tariff law).
162. In Bobbitt's terminology, see BOBBITT, supra note 9, at 93-119, isn't there a strong ethical argument, deeply rooted in the Founding saga of America, that condemns imperial exploitation of colonies for mere commercial advantage?
163. Langdell, supra note 150, at 365.
164. See id. at 371.
165. Id. at 371.
166. Id. at 373.
167. Id. at 375 (internal quotation marks omitted).
168. U.S. CONST. art. I, § 8, cl. 1. Note how, on one reading, this seemingly technical clause could be understood as a sweeping textual affirmation of America's anticolonialist, antimercantilist ethos - a promise that Americans would never treat others as the British had once treated them. See supra note 152.
169. U.S. CONST. art. II, § 1, cl. 4.
170. Langdell, supra note 150, at 375.
171. Id. at 373.
172. Id. at 382-83.
173. Another anomaly: An American who was born in Michigan in, say, 1808 and spent his entire life there would apparently have been ineligible to be President at age forty because he had not been "fourteen Years a Resident within the United States" within the meaning of Article II, Section 1, Clause 5. (Michigan was part of the original Northwest Territory in 1787, was organized as a separate territory in 1805, and became a state in 1837.) For a fun exploration of these and related complexities, see generally Jordan Steiker, Sanford Levinson & J.M. Balkin, Taking Text and Structure Really Seriously: Constitutional Interpretation and the Crisis of Presidential Eligibility, 74 TEX. L. REV. 237 (1995).
174. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 408 (1819).
175. Loughborough v. Blake, 18 U.S. (5 Wheat.) 317, 319 (1820).
176. Lowell, supra note 150, at 156-57.
177. In Lowell's words: [I]n the first clause of Art. I., Sect. 2, for example, the Constitution speaks of "the People of the several States," and in the next clause a representative is required to be a "Citizen of the United States." Why this change of expression if a different meaning is not intended? . . . Again, it is provided that "direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers;" but that "all Duties, Imposts, and Excises shall be uniform throughout the United States." If the intention had been merely that these last taxes should be uniform throughout the States, while direct taxes were to be apportioned among them according to population, the framers of the Constitution would no doubt have said so. The same remark applies to the provisions requiring laws of naturalization and bankruptcy to be uniform throughout the United States, and to the clause prescribing that the President shall have "been fourteen years a Resident within the United States." It may be observed in this connection that if no one can be a citizen of one of the United States unless he is a citizen of the States, then foreigners can become citizens only by being naturalized in a State, and Congress either had no power to extend the naturalization laws over the Territories, or persons naturalized there acquire none of the rights of citizens. Id. at 159-60 (emphasis added).
178. Consider the passage quoted above in note 167. Precisely because the clauses that he points to in Article I, Section 2 stand back to back in the Constitution itself, the textual contrast he identifies seems potentially significant. And when he pairs the Direct Tax Clause of Article I, Section 2 with the Tax Uniformity Clause of the nonadjacent Article I, Section 8, the pairing seems highly plausible, linking clauses that obviously address the same subject (taxation). From this Tax Uniformity Clause, Lowell's next intratextual leap to the nonadjacent naturalization and bankruptcy uniformity clause also seems manageable - not because both clauses use the same bland and unpromising phrase "throughout the United States," but because both clauses seem plausibly to be about the same principle of national uniformity. (Langdell also seems to appreciate this point. See Langdell, supra note 150, at 380.) Lowell subtly reinforces the implicit substantive basis for his intratextual leap by closing this paragraph with an illustration of the oddities that would result from a nonuniform federal naturalization power.
179. Lowell, supra note 150, at 158.
180. Id. at 160. Lowell follows these two examples with a third from the Fifteenth Amendment. Though this Amendment does use the phrase "United States," he places no emphasis on this fact. Instead, he stresses that its ban on race discrimination in voting, insofar as this ban applies to federal officials, applies beyond states - in the territories and the District of Columbia - because these are the only places where the federal government is empowered to regulate suffrage. See id.
181. ELY, supra note 134, at 12.
182. See Vikram Amar, supra note 149, at 222-41.
183. Note the possibility for certain kinds of cycles and Condorcet-like paradoxes here. Suppose those who draft clause 1 at time T1 think it means X, and those who draft parallel clause 2 at time T2 think it means Y. If we read clause 1 to mean X, and clause 2 to mean Y, we fail to do justice to the implicit idea that the two clauses are in part materia. If we read both to mean Y, we fail to do justice to the intent of drafters at T1. Likewise, if we read both to mean X, we fail to do justice to the drafters at T2. One intentionalist approach to the paradox would be to pose a counterfactual: if the drafters of clause 2 had been made aware of the cycle, would they have rewritten clause 1 to mean Y, or would they upon reflection have decided that clause 2 should really mean X, or would they have said that the two clauses should not be interpreted in pari materia?
184. BLACK, supra note 22, at 22-23.
185. Cf. id. at 31 ("There is, moreover, a close and perpetual interworking between the textual and the relational and structural modes of reasoning, for the structure and relations concerned are themselves created by the text, and inference drawn from them must surely be controlled by the text.").
186. But see, e.g., U.S. CONST. art. III, § 3 ("Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.").
187. For a discussion of the concept of "focal points," see THOMAS C. SCHELLING, THE STRATEGY OF CONFLICT 57-80 (1960).
188. See Vikram Amar, supra note 149, at 222-41; AMAR, BILL OF RIGHTS, supra note 95, at 271-74 & n.*.
189. See supra p. 780.
190. For more general analysis of this pattern, see AMAR, BILL OF RIGHTS, cited above in note 95.
191. See id. at 119-21.
192. U.S. CONST. amends. I, II, IV, IX, X. Of course it is logically possible that "people" is an essentially unimportant chameleon word, like "person." The intratextual issue can never be decided a priori. Rather, intratextualism merely poses the question whether a deep analytic pattern in fact ties together a repeated word or phrase, and to answer this question we will need to use other tools of interpretation to supplement intratextualism.
193. See Jed Rubenfeld, Reading the Constitution as Spoken, 104 YALE L.J. 1119, 1143-73 (1995);
194. see also JED RUBENFELD, FREEDOM AND TIME (forthcoming). I consider these works to be among the most important current projects in constitutional theory.
195. See Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979).
196. See WILLS, supra note 34.
197. Because I consider the Constitution a single text, I have here designated clausal comparisons within the document as inlratextual, as distinct from intertextual comparisons between clauses in the Constitution on one hand and clauses in other documents on the other.
198. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991);
199. 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998);
200. 3 BRUCE ACKERMAN, WE THE PEOPLE: INTERPRETATIONS (forthcoming).
201. See BLACK, supra note 22.
202. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW (2d ed. 1988).
203. See sources cited supra note 183.
204. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 406 (1819).
205. Cf. SCHELLING, supra note 177, at 57-80 (discussing focal points).
206. Even though intratextual analysis will often lead readers to consider certain clauses and their possible interrelation, fully satisfying constitutional analysis will often require the use of other tools of interpretation once the relevant clauses and questions have been identified. Given that some of these techniques are less easily accessible to layfolk, the democratic advantages of intratextualism may be real but nonetheless limited.
207. For those with access to the Internet, a concordance can be generated by visiting the website run by the Library of Congress, at 〈http://lcweb2.loc.gov/const/constquery.html〉.
208. Griswold v. Connecticut, 381 U.S. 479, 484-85 (1965) (citation omitted).
209. For example, I doubt that the Self-Incrimination Clause is as tightly linked to privacy as Justice Douglas implies. See AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 65-66 (1997).
210. See ELY, supra note 134, at 88-101, 221 n.4. Another brand of holistic textualism squeezes meaning from the Constitution's organization chart - by drawing inferences from the fact that federal powers are conferred in Article I, Section 8, whereas restrictions on federal power appear in Section 9, see McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 419 (1819); by observing that all the limits in Section 9, and the original Bill of Rights, were designed as limits on federal power, with Section 10 as the home of limits on states, see Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 248-49 (1833); and so on. Arguments in this tradition might point to the special place of textual honor held by the Constitution's first three words as evidence of popular sovereignty as the document's first principle; or to the very existence of separate Articles I, II, and III as evidence of the separation of powers and the coextensiveness of the three great federal departments; or to the firstness of Article I as evidence of Congress's primacy; or to the location of the Veto Clause in Article I as evidence that this presidential power is legislative in nature. By contrast, a Blackian structuralist arguing for these four propositions would point to institutional patterns rather than the organization of constitutional text On this view, popular sovereignty is the Constitution's first principle because the document became law only when ratified by special conventions of the people. The equality of the departments is proved by the fact that none is wholly dependent on the others for appointment and continuance in office, and their coextensiveness reflects the func-tional reality that one department makes federal law, which the other departments then enforce and adjudicate, respectively. If Congress stands first among equals, it is because legislation temporally and functionally precedes execution and adjudication, or because the legislature is the largest branch and its lower House stands closest to the citizenry. If the veto is a legislative power, it is because functionally the President is involved in lawmaking, regardless of the textual placement of the Veto Clause.
211. In addition, certain clauses may be especially rich with meaning and worthy of much more attention than other clauses. In deploying intratextual analysis in this Article, I have chosen to highlight various clauses that in my view are hugely important but understudied: the Preamble, the Article I Speech or Debate Clause, the Article I Attainder and Nobility Clauses, the Thirteenth Amendment, and the Fourteenth Amendment Citizenship and Privileges or Immunities Clauses.
212. Lochner v. New York, 198 U.S. 43 (1905).
213. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 406 (1819).
214. I put aside here other important differences of phrasing marked by the ellipses.
215. For example, the Fifteenth and Nineteenth Amendments are in pari materia, with the first addressing race and the second, sex. But the overall ratio of male voters to female voters is more likely to approximate fifty-fifty than the ratio of white voters to black voters. And although sex is conventionally understood as binary (male/female), the same is not true of race, given the emergence of more than two socially recognized "races" in America. Also, suppose racially polarized voting begins to emerge far more vividly than gender polarized voting. In such a world, perhaps doctrinal rules for implementing the Fifteenth Amendment (in, say, apportionment cases) should diverge from those doctrinal rules implementing the Nineteenth Amendment, despite their textually parallel form.
216. Both Karl Llewellyn and Jack Balkin have observed that interpretive canons often come in opposing semiotic pairs. See Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 401 (1950);
217. J.M. Balkin, A Night in the Topics: The Reason of Legal Rhetoric and the Rhetoric of Legal Reason, in LAW'S STORIES: NARRATIVE AND RHETORIC IN THE LAW 211, 216-18 (Peter Brooks & Paul Gewirtz eds., 1996). Intratextualism can also be seen in this light. Paired against the notion that the same words should mean the same thing (e.g., "shall be vested") is the idea that sometimes the same words should mean different things because the overall context of two clauses is different (e.g., chameleon words). Paired against the notion that different words should mean different things (e.g., "necessary" versus "absolutely necessary" and "all cases" versus "controversies" - what I have called the flip side of intratextualism) is the idea that sometimes different words should mean the same thing, either because they are in effect synonyms (e.g., "necessary" and "needful") or because a phrase is essentially an explanatory or declaratory gloss that only clarifies, but does not change, meaning (e.g., the equal protection gloss on due process). The fact that formally opposed pairs exist does not mean that anything goes or that interpretation is some sort of sham or shell game. Reasons must be given for choosing one or the other of an opposing pair. If we claim that same means same, we must be prepared to defend the underlying similarity of context; whereas if we claim that a given word is a chameleon, we must identify and defend the contextual difference. To pick another example, if we claim that the Necessary and Proper Clause and the Equal Protection Clause are essentially "declaratory" - adding emphasis but not new rules - then we must be prepared to defend that claim with evidence beyond the conclusory label. See supra note 11 and pp. 772-73 (offering historical evidence that supports a declaratory reading of these two clauses).
218. Like textual argument more generally, intratextual argument is by no means an inherently politically conservative interpretive tool. Today's foremost judicial champions of textualism (Justices Scalia and Thomas, for example) may be conservative, but in the Warren Court and Burger Court eras, some of the greatest champions of textualism (Justice Black and Professor Ely, for example) were leading liberals. All proper techniques of constitutional interpretation can be used by both liberals and conservatives alike. Note also that intratextualism can be used in statutory interpretation as well as in constitutional law. Indeed, Professors Eskridge and Frickey have identified the following as a standard maxim of modern statutory interpretation: "Interpret the same or similar terms in a statute the same way." William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term - Foreword: Law as Equilibrium, 108 HARV. L. REV. 26 app. at 99 (1994). I shall not here attempt serious analysis of statutory intratextualism. Some of the arguments I have offered - focusing on the Constitution as a compact, cleanly bounded, and easily accessible document, written for ordinary people and designed to endure over centuries - may not readily transfer to the realm of statutory interpretation. And in surveying canonical cases and commentaries, I have intentionally focused on issues of constitutional as opposed to statutory interpretation.
219. This is probably as good a place as any to acknowledge that Kenneth Starr is my friend. I consider him a scholar and a gentleman, and none of my criticism of the statute and the case that made his appointment possible should be construed as a criticism of him personally.
220. See 28 U.S.C. §§ 591-599 (1994).
221. 487 U.S. 654 (1988).
222. U.S. CONST. art. III, § 1, cl. 1.
223. See Morrison, 487 U.S. at 705, 724 n.4 (Scalia, J., dissenting).
224. See Morrison, 487 U.S. at 691, 693.
225. U.S. CONST. art. II, § 1, cl. 1 (emphasis added). As we saw above at pages 760-61, Justice Story made much the same point for the Court in Martin.
226. Myers v. United States, 272 U.S. 52 (1926).
227. Humphrey's Executor v. United States, 295 U.S. 602 (1935).
228. See Morrison, 487 U.S. at 723-27 (Scalia, J., dissenting).
229. See Morrison, 487 U.S. at 685-93.
230. One possible line of attack on Scalia's position would invoke the Federal Reserve System: under Scalia's logic, isn't the Federal Reserve unconstitutional because its head is not removable at will? But Scalia (or some other believer in the general concept of the unitary executive) might concede that the textual strictness of the Vesting Clause must be accommodated to two post-Founding phenomena that the Framers could not have anticipated - the rise of the plebiscitarian presidency and the discovery of Keynesian techniques allowing unscrupulous incumbent Presidents to artificially inflate the economy in election years (with disastrous effects perhaps setting in only after the election). But this concession hardly supports the Independent Counsel statute. Prosecutorial self-dealing is not something that the Framers failed to anticipate. And the solution they provided, based on publicity (via grand juries, the press, and legislative oversight) and impeachment (if necessary) still works and works well -better than the Independent Counsel statute, in fact. This, I suggest, is the lesson that emerges when we compare Watergate - where the Framers' system worked beautifully - with Whitewater, where the flawed statute has not.
231. See Morrison, 487 U.S. at 724 n.4 (Scalia, J., dissenting).
232. This practice is in keeping with the views propounded by Publius. See THE FEDERALIST No. 74, at 448-49 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
233. This candid comment might well be out of place in many contexts but seems appropriate to offer here, in a discussion that so plainly implicates issues of interpretive style and constitutional aesthetics.
234. U.S. CONST. art. II, § 2, cl. 1 (emphasis added).
235. See Brian C. Kalt, Note, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons, 106 YALE L.J. 779, 809 (1996).
236. See 28 U.S.C. §§ 49, 593(a) (1994).
237. U.S. CONST. art. II, § 2, cl. 2.
238. Morrison v. Olson, 487 U.S. 654, 671 (1988).
239. Id.
240. See id. at 671-72.
241. See id. at 716 (Scalia, J., dissenting).
242. See id. at 719.
243. Id. at 719-20.
244. In a later case, Justice Scalia explicitly calls attention to the intratextual link between the "inferior" tribunals language of Article I, Section 8, Clause 9, and the cognate "inferior" courts language of Article III, Section 1. See Freytag v. Commissioner, 501 U.S. 868, 902 (1991) (Scalia, J., concurring in part and concurring in the judgment).
245. U.S. CONST. art. I, § 8, cl. 1, 9 (emphasis added).
246. Note that if the judges on "inferior" courts were themselves deemed "inferior" officers - an issue on which I take no position here - this would mean that Congress could choose to allow lower federal judges to be appointed without Senate confirmation. At least one commentator has lent his support to this view. See Burke Shartel, Federal Judges - Appointment, Supervision, and Removal - Some Possibilities Under the Constitution, 28 MICH. L. REV. 485, 488-89, 499-529 (1930). But see Weiss v. United States, 510 U.S. 163, 191 n.7 (1994) (Souter, J., concurring) (noting the long-standing tradition of judges of inferior courts as principal officers);
247. Amar, Two Tiers, supra note 61, at 235 n.103 (1985) (noting Shartel's argument without endorsing it). Note further that on my proposed reading of the Appointments Clause, if "inferior court" judges are indeed "inferior" officers, their unilateral appointments could be vested in certain courts of law but not in the President or in the head of an executive department, as these latter officers would not be the relevant constitutional superior officer or entity of "inferior" judges.
248. See Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817, 828-37 (1994).
249. See 2 FARRAND, supra note 76, at 627-28. The only other recorded discussion of inferior officers occurred a week earlier and strongly supports the idea that the Framers simply meant to authorize the unilateral appointment of inferior officers by their respective superiors as a housekeeping matter to spare the Senate's time. See id. at 537-39. In response to George Mason's concern that the Senate would need to be in continuous session to approve all appointments, however trivial, see id. at 537, Rufus King stated that he "did not suppose it was meant that all the minute officers were to be appointed by the Senate, or any other original source, but by the higher officers of the departments to which they belong." Id. at 539 (emphasis added).
250. Act of July 27, 1789, ch. 4, § 2, 1 Stat. 28, 29.
251. See Act of Aug. 7, 1789, ch. 7, § 2, 1 Stat. 49, 50.
252. See Morrison v. Olson, 487 U.S. 654, 671 (1988).
253. 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1530, at 387 (Boston, Hilliard, Gray & Co. 1833) (emphasis added).
254. Ex parte Hennen, 38 U.S. (13 Pet.) 230, 257-58 (1839) (emphasis added); see also United States v. Germaine, 99 U.S. 508, 510-11 (1878) (describing inferior officers as "inferior to" their respective appointing authorities and as "mere aids and subordinates of the heads of the departments"); Collins v. United States, 1878 Ct. Cl. 568, 574 (1879) ("The word inferior . . . means subordinate or inferior to those officers in whom respectively the power of appointment may be vested - the President, the courts of law, and the heads of departments." (emphasis added)).
255. Accountability was an overriding concern of the Framers in the appointments context. See, e.g., THE FEDERALIST No. 70, at 428 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Hamilton explained: Scandalous appointments to important offices have been made [in New York by a governor acting behind closed doors with his council]. . . . When inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination; while the people remain altogether at a loss to determine by whose influence their interests have been committed to hands so unqualified and so manifestly improper.
256. THE FEDERALIST No. 70, at 428 1961. Id.;
257. see also THE FEDERALIST No. 76, at 455 (Alexander Hamilton) ("The sole and undivided [appointment] responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation.");
258. THE FEDERALIST No. 77, at 461 (Alexander Hamilton) ("The blame of a bad nomination would fall upon the President singly and absolutely."). The Framers' commitment to public accountability is mocked by a statute that gives a group of low-visibility judges power to make important nonjudicial appointments behind closed doors, with no record of who said what to whom. Morrison ignored the key concept of accountability, but the Court has of late rediscovered this concept and restored it to its central place in proper Appointments Clause thinking. See Edmond v. United States, 117 S. Ct. 1573, 1579-81 (1997).
259. Surely it would be odd to claim that Starr is "inferior" to his "superior" Reno, for Reno lacks broad power to tell Starr what to do. That of course is the whole point of a statute designed to make him independent of her. But precisely to the extent he is truly independent, he is not truly inferior. A truly inferior independent calls to mind a truly square circle.
260. In 1880, the Court in Ex Parte Siebold, 100 U.S. 371 (1880), moved away from some of the language of Hennen. But as Justice Scalia notes, the facts of Siebold seem consistent with the clean bright-line subordination principle: the Court allowed judges to appoint special election supervisors whose duties were somewhat akin to marshals and ministerial clerks, and who presumably answered to the appointing court. Siebold treated the Appointments clause only in passing and laid down no general doctrinal test. See Morrison, 487 U.S. at 721-22 (Scalia, J., dissenting). In any event, whatever Siebold said or did, the modern Court has now clearly identified inferiority with subordination, see Edmond v. United States, 117 S. Ct. 1573, 1580-81 (1997).
261. Edmond, 117 S. Ct. at 1580-81. For scholarly recognition that Edmond in effect abandoned Morrison, see Nick Bravin, Note, Is Morrison v. Olson Still Good Law? The Court's New Appointments Clause Jurisprudence, 98 COLUM. L. REV. 1103, 1117-20 (1998). Note that in requiring that a unilaterally appointed inferior officer be appointed by his own superior, I go a step beyond Edmond. (Even if the general in charge of American troops in Bosnia answers to other generals, surely Congress may not vest his appointment in courts of law.) Note also that where the President herself directly appoints an inferior officer - say, the White House Chief of Staff - the inferior need not be supervised by a Senate confirmee, but indeed may be directly supervised by the President herself, who could then be held more directly accountable for her direct assistant.
262. See Akhil Reed Amar, Some Opinions on the Opinions Clause, 82 VA. L. REV. 647, 666-68 & n.90 (1996).
263. See, e.g., Agostini v. Felton, 117 S. Ct. 1997, 2017 (1997); American Trucking Ass'ns Inc. v. Smith, 496 U.S. 167, 180 (1990); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). On the significance of the word "inferior" for the issues raised here, see Caminker, cited above in note 233, at 828-38.
264. For example, even if inferiority means subordination within one's proper branch, executive or judicial, the mode by which branch superiors supervise and command branch inferiors may sensibly differ, given the different traditions and functions of the branches. Executive supervision of inferiors may more often be informal and face to face than, say, the judicial supervision exercised by the Supreme Court over inferior courts. Executive superiors may also enjoy control over inferiors' salaries in ways that would be inappropriate within the judicial branch hierarchy. And so on.
265. But see supra note 216 (suggesting that the Founders' model of impeachment, legislative oversight, and press publicity remains more functional and attractive than the statutory innovation at the heart of the present Independent Counsel statute, which injects judges into the highly political process of picking prosecutors).
266. See, e.g., Clinton v. City of New York, 118 S. Ct. 2091, 2103-05 (1998); INS v. Chadha, 462 U.S. 919, 944-59 (1983).
267. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
268. Id. at 268.
269. Id. at 269.
270. Id. at 271.
271. Id. at 273.
272. See ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE (1960) [hereinafter MEIKLEJOHN, POLITICAL FREEDOM].
273. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).
274. Id. at 522 (Thomas, J., concurring).
275. See, e.g., Turner Broad. Sys. Inc. v. FCC, 117 S. Ct. 1174 (1997); Buckley v. Valeo, 424 U.S. 1 (1976).
276. 517 U.S. 484 (1996).
277. Id. at 522.
278. Perhaps my favorite is Justice Thomas's outstanding concurrence in White v. Illinois, 502 U.S. 346, 358-66 (1992) (offering a sensible and textually acute analysis of the Sixth Amendment Confrontation Clause). For my own efforts to buttress Justice Thomas's textual argument with an intratextual analysis, see
279. See AMAR, BILL OF RIGHTS, supra note 95, at 36.
280. See id. at 35-41.
281. The precise placement of the "First" Amendment (it was originally third, but amendments one and two went unratified in the 1790's) provides further evidence of the interlock. See id. (providing details). On organization-chart textualism more generally, see above note 197.
282. An Act Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown (Bill of Rights), 1689, 1 W. & M., ch.2, § 9.
283. Articles of Confederation of 1781, art. V, cl.5.
284. For important elaboration of my qualifying phrase "regulation of political discourse," see ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT (1998).
285. Meiklejohn himself also observes, and draws support from, the intratextual linkage between the two constitutional speech clauses. See MEIKLEJOHN, POLITICAL FREEDOM, supra note 253, at 34-36;
286. Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245, 256 [hereinafter Meiklejohn, The First Amendment].
287. Elsewhere in his work, Meiklejohn features other important and elegant intratextual arguments. See, e.g., MEIKLEJOHN, POLITICAL FREEDOM, supra note 253. at 53 (noting the intratextual linkage between the "abridge" wording of the First and Fourteenth Amendments);
288. Meiklehohn, The First Amendment, supra, at 253-54 (noting the popular-sovereignty linkage between the Preamble; Article I, Section 2; and the First and Tenth Amendments, all of which use the words "the people").
289. For a nice discussion, see Kenneth L. Karst, Boundaries and Reasons: Freedom of Expression and the Subordination of Groups, 1990 U. ILL. L. REV. 95.
290. See, e.g., City of Cincinnati v. Discovery Network Inc., 507 U.S. 410, 428-31 (1993) (invalidating a city newsrack policy that treated commercial speech as less worthy than ordinary newspapers).
291. See AMAR, BILL OF RIGHTS, supra note 95, at 163-74, 191.
292. Cf. id. (providing such a tour).
293. As should be clear from my reference to literary and religious speech, my target today is not a reading of the First Amendment that stresses autonomy as a value, but Justice Thomas's view that commercial speech deserves full equality of status with political discourse. On important differences between autonomy and commerce in the First Amendment, see C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH (1989).
294. 117 S. Ct. 2157 (1997).
295. 494 U.S. 872 (1990).
296. See id. at 878 (rejecting the argument that "religious motivation for using peyote place[d] [respondents] beyond the reach of a criminal law that is not specifically directed at their religious practice").
297. Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. § 2000bb-2000bb-4 (1994)).
298. Boerne, 117 S. Ct at 2162 (citing 42 U.S.C. §§ 2000bb(b), 2000bb-1 (1994)).
299. See id. at 2171-72.
300. Technically, the Justice concurred in Smith's judgment, but on the general constitutional issue of free exercise, she sided with the dissenters: like them and unlike the Smith majority, she argued that free exercise principles require religiously based exemptions from secular statutes. See Smith, 494 U.S. at 892-903 (O'Connor, J., concurring in the judgment).
301. See Boerne, 117 S. Ct. at 2178-85 (O'Connor, J., dissenting).
302. See supra pp. 814-13.
303. See Boerne, 117 S. Ct. at 2184 (O'Connor, J., dissenting) ("[The] duty [owed the Creator] is precedent both in order of time and degree of obligation, to the claims of Civil Society . . . ." (quoting JAMES MADISON, 2 WRITINGS OF JAMES MADISON 184-85 (Gaillard Hunt ed., 1901)) (second alteration in original)).
304. See Smith, 494 U.S. at 903-07 (O'Connor, J., concurring in the judgment).
305. See Boerne, 117 S. Ct. at 2181-85 (O'Connor, J., dissenting).
306. See AMAR, BILL OF RIGHTS, supra note 95, at 231-57.
307. I am using "harm" here in the sense elaborated by John Stuart Mill and his followers.
308. See, e.g., Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 NW. U. L. REV. 1106 (1994).
309. Boerne, 117 S. Ct. at 2164.
310. 392 U.S. 409 (1968).
311. See id. at 439.
312. Boerne, 1178. Ct. at 2164.
313. Act of Apr. 9, 1866, ch. 31, 14 Stat. 27.
314. Admittedly, Representative John Bingham, the father of Section 1 of the Fourteenth Amendment, did not share his colleagues' broad view of Section 2 of the Thirteenth. (Or if he did, he thought that even under a broad view, encompassing substantive and not merely remedial enforcement, Section 2 was still not broad enough to support the wide-ranging Civil Rights Bill.) But on this issue Bingham was outvoted by two-thirds of his colleagues, who overrode President Johnson's veto - the same two-thirds necessary to pass the Fourteenth Amendment on to the states.
315. See Boerne, 117 S. Ct. at 2164-66.
316. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439 (1968).
317. See, e.g., Stanford v. Kentucky, 492 U.S. 361, 369-71, 373 (1989) (calling "the pattern of enacted laws" the "primary and most reliable indication of consensus").
318. For a powerful and elegant argument in support of this approach, see Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, in HARV. L. REV. 153, 189-95 (1997).
319. CONG. GLOBE, 39th Cong., 1st Sess. 1034 (1866).
320. 1 THE OXFORD ENGLISH DICTIONARY 586 (2d ed. 1989).
321. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (emphasis added). For clear evidence that the 39th Congress had these key words from McCulloch in mind when they drafted the Fourteenth Amendment, see CONG. GLOBE, 3gth Cong., 1st Sess. 1118 (1866) (remarks of Rep. James Wilson). Wilson was the House sponsor of the Civil Rights Act of 1866, which he defended under Section 2 of the Thirteenth Amendment Doubts about the sufficiency of this basis for congressional power eventually helped lead to congressional adoption of the Fourteenth Amendment, which was (among other things) designed to provide a. rock-solid foundation for the Act. In this passage, Wilson defended the pending civil rights bill by quoting verbatim Section 2 of the Thirteenth Amendment and then explicitly linking its wording to the key words from McCulloch (which Wilson also quoted verbatim).
322. Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 614-15 (1870).
323. The Civil Rights Cases, 109 U.S. 3, 20 (1883), cited in Jones v. Alfred Mayer Co., 392 U.S. 409, 439 (1968).
324. City of Boerne v. Flores, 117 S. Ct. 2157, 2161 (1997).
325. See supra p. 819.
326. Boerne, 117 S. Ct. at 2163 (citing Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)) (emphasis added).
327. Those readers looking for a general concluding section in this Article will not find one. Intratextualism is one among many interpretive tools, and like all tools it must ultimately be judged instrumentally. Does the tool work? Can the tool generate important, incisive, and illuminating readings of the Constitution? With this tool, can we see more clearly deep truths about the meaning of our Constitution? These questions are best answered by example rather than by a priori reasoning. If my examples have failed to persuade readers of the power and elegance of intratextualism, little more can be said. If, however, my examples have persuaded readers that a small and simple tool can in fact generate large and rich insights across a broad range of questions, little more need be said.