Today’s Ad Law Reading Room entry is “The Limits of Text,” by Farah Peterson, which is forthcoming in the Yale Law Journal. Here is the abstract:

Let’s say the “laws” are the rules that actually constrain power, organize government, and coerce people. That is, let’s define the law as the system of rules we experience, and not just the system of rules our statutes, precedents, and founding documents describe. Just now, during the second Trump presidency, the gap between the law as it is written and the law as we experience it is obvious even to lay observers. Yet the dominant ways of thinking about law—textualism and originalism—are so focused on the proper interpretation of our legal texts that I fear we have lost sight of the limits on those texts’ capacity to guarantee the rights, obligations, and principles they enshrine.

The law as the Founding generations experienced it also differed from the law described in legal texts. The term “Founding” suggests, misleadingly, that Americans made a decisive political commitment to the style of government described in the Constitution. For some of the Constitution’s central features—including the delineation of federal and state prerogatives, separation of powers, and federal judicial authority—ratification was the beginning of a process of constitutional change, not the end.

Because law in practice differed from the law on the page, we cannot know the content of the original Constitution by reading its words, by knowing what the text would have meant to English-speaking contemporaries, or by reference to early judicial interpretation. This Atkins Feature discusses how early American law differed from text and why, and what early American history teaches us about when we should expect texts to create governing law and when we should expect text and law to diverge. Those lessons should make us cautious about the weight we place on written law. That is not to say text does not matter. But a simplistic insistence that text defines the system of rules we experience—that it can constrain power in the face of changing norms or protect our system of government—is dangerous.

A wide-ranging piece that pushes beyond the traditional limits of administrative law, “The Limits of Text” is a compelling critique of originalism and other methods that take enacted text as the law. That critique alone would make it an important contribution to the literature—much of it penned by historians like Peterson—that upends the notion that legal norms can be crystallized and frozen in time. But what makes “The Limits of Text” remarkable is how it manages to be subtly and yet powerfully rooted in our current moment, pushing us to view the constitutional order as a matter of politics and power and not (just) courts and text.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.