One of the more interesting things about the directions in which Employment Division v. Smith has been interpreted by subsequent judges is the possible implication for textualism as a theory of constitutional interpretation.  The primary virtue of textualism is sometimes said to be its fixity: words mean something — and that something can be fixed and understood by later interpreters to mean exactly what it meant at the time of the words’ authorship.  And yet it seems to me that the interpretation of the Smith decision — and particularly the expansion of the exceptions which Smith itself mentions (including by the Court itself in Hosanna-Tabor) — may suggest something like the opposite view.  Textualism is in some ways a theory of interpretive change, in a way that intentionalism could never be.

Here’s why. 

We know that Justice Scalia was the author of Smith.  And we know that his Smith opinion for the majority was joined by 4 other Justices (Justice O’Connor wrote a special concurrence which did not adopt the Smith framework).  And we also know that Smith itself seems to carve out really three categories of exception — for hybrid rights, regulatory schemes with individual assessments, and the issue of church autonomy.

What we don’t know is what either Justice Scalia or any of the other Justices who signed on to the opinion intended by making the exceptions to Smith’s general rule.  Perhaps they really intended to create major exceptions which would put in doubt the central holding of the case.  Or perhaps they needed to make these exceptions simply in order to circumvent existing precedent, never intending (or desiring) that those exceptions would see the light of day again in future cases.  Or maybe there was a combination of motivations — some exceptions were really intended to have doctrinal consequences, while others were just attempts to get around some inconvenient decisions of the past.  We could ask Justice Scalia or any of the other Justices signing the majority opinion what they intended 22 years ago, but we are not likely to get a reliable answer.  It’s hard to remember what one intended by doing something in the past, let alone in a single case among hundreds some decades long past, and now lost to the sands of time.

But it gets fun when one reflects on what happened next.  In the wake of Smith, lower courts had to make sense of its language.  They had to interpret the language — including, and especially, the exceptions to the central rule — in a way that made sense to them in light of the specific concerns reflected in their own cases.  It was the text, rather than the intentions motivating it, which served as their guide and governed the texts that they in turn produced.  And by interpreting the text in this way, lower court judges moved Free Exercise law in directions possibly (probably…almost certainly) not intended by the Justices who joined Smith.  It is entirely possible (perhaps even likely) that the exception for individualized assessments made in Smith was never remotely intended to ground a subsequent doctrinal evolution in which that exception was interpreted, expounded, and expanded upon by lower courts.  But that is exactly what has happened: in fact, it has happened many times over, as different judges have interpreted it in very different ways.  The Justices may have intended one thing, but the words of Smith do not belong to them, and it is for later courts to interpret them in new ways — ways which take text in unexpected and likely unforeseen directions.  This phenomenon occurred in Hosanna-Tabor too.  If you had asked Justice Scalia at the time he wrote Smith whether he thought that the ministerial exception lay outside of Smith’s general rule, he may well have given you a very different answer than what he gave in signing on to CJ Roberts’s decision this past January.

My own view is that the evolutionary quality of textualism might please Justice Scalia, himself (along with Justice Black) a primary exponent of its virtues.  The text does not belong to its author.  It belongs to the interpreters that follow — to those others that come after.  It is in this way that textualism may be a theory of both fixity and gradual change.

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