The Cost of the Text
Christopher Serkin and Nelson Tebbe's Is the Constitution Special?explores many facets of constitutional interpretation. I will focus here on their observation that constitutional interpretation is "less textual" than statutory interpretation. I place the expression "less textual" in quotation marks because "textual" could mean many things, such that it would often be problematic to characterize one interpretive exercise as more or less textual than another. In Serkin and Tebbe's view, as I understand it, mainstream constitutional interpretation is "less textual " than statutory decisionmaking in that it is less constrained by the words of particular enacted clauses. As a convenient shorthand, I will refer to the phenomenon that Serkin and Tebbe observe-that lawyers and judges are more prone to hew closely to the language of particular clauses in statutory cases than in constitutional ones-as the "textualism gap."