Issue #21, Summer 2011

The Case for New Textualism

To read the other essays in the “From the Ground Up: Fostering Entrepreneurship” symposium, click here.
To read the other essays in the First Principles: Debating the Constitution symposium, click here.

Progressives are correct to worry that the conservative account of constitutional interpretation has dominated the public discourse for the past 40 years. But the problem runs deeper than that. Conservatives are also dominating the conversation about the Constitution itself, slowly but surely uniting a broad segment of the American public behind a mostly fictitious account of our nation’s Founders as a group of gun-toting, property-loving, and tax-hating defenders of big corporations and proponents of small government.

Progressives need only look to the Supreme Court’s decision last year in Citizens United v. Federal Election Commission, giving corporations a constitutional right to spend unlimited amounts to elect the candidates of their choice, and to the recent decisions by two conservative district court judges declaring unconstitutional important portions of President Obama’s health-care reform legislation, to see that the conservative domination of the judicial branch and of the conversation about the Constitution poses a very real threat to the progressive movement. Two questions arise: How did this happen? And what do we do about it?

Progressives are losing the fight over the courts and the Constitution because conservatives have maneuvered us into running from, rather than embracing, the text and history of the Constitution. For decades, conservatives, led by Justice Antonin Scalia, have been asserting that judging is “easy as pie”: You simply follow the text of the Constitution, and you reach conservative results. The progressive response has been to attack originalism, Scalia’s purported judicial method, and to explain that judging is much more complicated than Scalia makes it seem. Barack Obama on the campaign trail and during his deliberations over the replacement for retiring Justice David Souter talked about the need for judges who have empathy and shared his “deepest values and concerns.” In a series of debates with Justice Scalia, Justice Stephen Breyer has focused on explaining how ambiguous the terms of the Constitution are, how malleable history is, and how frequently judges must decide cases based on factors such as the real world consequences of a judge’s rulings. The result of this rhetorical imbalance is polling that shows that the public, by overwhelming margins, favors conservative judges over progressive judges in interpreting the law and the Constitution.

So we have a problem; what’s the solution? On this front, Geoffrey Stone and William Marshall offer some good answers. Most importantly, instead of running from the Constitution’s Framers and the history of its enactment, as we progressives have too often done in the past, Stone and Marshall lay claim to them, beginning with the title of their essay, “The Framers’ Constitution.” Stone and Marshall also acknowledge that “the principles enshrined in the Constitution do not change over time,” while those principles, when applied, might lead to different results depending on the circumstances. Thus, despite their disavowal of originalism, they embrace the original text of the Constitution and endorse a vision of the document in which the bedrock rules and principles contained in it do not lose their meaning over time. We are in complete agreement on these points.

In other respects, however, Stone and Marshall fall into the same traps that have gotten progressives into a hole in the first place. The first problem is that Stone and Marshall seem to believe that nearly every provision of the Constitution is “open-textured” and that the Constitution’s text provides judges with a lot of principles and aspirations, but very few answers. That is wrong. Our 8,000-word Constitution contains not only abstract phrases such as “privileges or immunities,” “equal protection,” and “due process of law,” but also much more concrete terms dictating the structure and limits of our constitutional democracy. We know from the Constitution’s text that a President must be at least 35 years old. We know that federal law is “the supreme law of the land,” and therefore state efforts to disregard or nullify federal law are unconstitutional. Finally, with respect to the high-profile challenges to health-care reform, we know that Congress has the power to “regulate commerce…among the several states,” a power that clearly encompasses regulation of the national health-care and insurance markets. Congress also has the supplemental power to pass laws that are “necessary and proper” to execute the other enumerated powers—text that strongly supports the constitutionality of the Affordable Care Act’s minimum coverage provision, which addresses the $43 billion problem of uninsured medical bills by requiring those who can afford it to buy insurance or pay a fee. One could argue that all these terms are hopelessly indeterminate—that, for example, with increased life expectancy, 40 is the new 35—but we think real and fixed meaning can often be derived from the Constitution’s text.

Overstating the vagueness of the Constitution’s text leads to a related problem: Stone and Marshall leave the impression that judges have a great deal of discretion to decide cases based on considerations of factors such as “values,” “practical realities,” and the “most fundamental aspirations of our Constitution.” Pushing for that kind of latitude is dangerous in a world where the Supreme Court is dominated by five conservative justices who, as Stone and Marshall rightly acknowledge, have demonstrated a willingness to be activist in support of their own views. Indeed, one of the most powerful portions of Stone and Marshall’s essay is their straightforward assertion, made in passing, that the original principles of the Constitution do not support the conservative Court’s current affirmative action jurisprudence or its decision in Citizens United. Our point is that this powerful assertion should not be a mere aside to a complicated argument about judicial methodology. It should be the argument.

What progressives need to do, in short, is to spend less time and energy talking about how little the Constitution answers and how hard judging is and to spend much more time and energy taking on Scalia and other conservatives about why they are wrong about the Constitution itself.

To see the full promise of this argument, some surprisingly stubborn undergrowth must be cleared once and for all. Too often, the current constitutional debate between progressives and conservatives revolves around ideas in vogue during the 1980s, the decade that saw the rise of what Attorney General Edwin Meese called a “jurisprudence of original intention,” and the Supreme Court nomination of Robert Bork, the most prominent proponent of this jurisprudence. This original-intent version of originalism held that judges were bound by the specific results intended by the individuals who wrote or ratified the Constitution’s text. It was intellectually bankrupt, elevating often-controversial assessments of what the Framers or ratifiers intended over the Constititution’s actual words, and abhorrent in the sometimes antediluvian results it would have commanded.

Although sometimes hard to tell from current debates, the Meese/Bork jurisprudence of original intention actually had a very short shelf life. A combination of an effective intellectual onslaught from left-leaning scholars and the defeat of Bork’s confirmation by a bipartisan 58-42 vote in the U.S. Senate cut short its time as a serious approach to jurisprudence. The crowning blow, surprisingly enough, was delivered by Scalia himself in his 1997 book, A Matter of Interpretation. Pushed hard by New York University legal philosopher Ronald Dworkin in an exchange published in the book, Scalia conceded both that it is the text of the Constitution that should guide judicial decision-making, not the intent of the Framers or ratifiers, and, as important, that it is the objective meaning of the text that directs judicial decision-making, not the expectations of the Framers in terms of how the words would be interpreted.

Scalia has since had a decidedly uneven career in applying his purported “jurisprudence of original meaning.” He has at times been a forceful and principled advocate of following the Constitution’s original meaning, even occasionally when doing so leads to results—such as freeing criminal defendants or permitting flag burning—that Scalia himself dislikes as a matter of policy. Frequently, though, Scalia seems to fall back upon the original intent-based originalism he rejected in A Matter of Interpretation. A perfect illustration is his recent assertion that because the ratifiers of the Equal Protection Clause did not specifically vote for a ban on sex discrimination against women, the broadly written mandate of equal protection for all persons cannot be read to protect women.

Still, in the wake of A Matter of Interpretation, scholars such as Harvard’s Lawrence Lessig and Yale’s Jack Balkin and Akhil Amar have built upon the foundation of consensus the Scalia/Dworkin exchange revealed. The result of this work is an approach to constitutional interpretation we call “new textualism.” The name is apt because scholars in this still emerging progressive movement focus relentlessly on the text of the Constitution rather than on the intent of the Framers and ratifiers. New textualists look carefully at history—both the enactment history of particular provisions and the broader historical events that produced the need for the text—to understand the meaning of the Constitution’s text. But they do not let history trump text. Finally, new textualists believe that while the meaning of the Constitution does not change, its application of those principles can lead to different outcomes as circumstances change.

New textualism has exerted a good deal of influence and attracted a number of supporters within the academy. As mentioned earlier, Stone and Marshall agree that the Constitution’s unchanging principles can yield varied results in response to technological, economic, and cultural changes. They are not alone. There is now broad consensus around this last point, even among leading scholars on the right, such as Steven Calabresi, a founder of the conservative Federalist Society, and Randy Barnett, a Georgetown law professor who has emerged as the leading academic proponent of the legal attack on the constitutionality of health-care reform.

With this consensus in hand, progressives should declare victory in the war over the basics of constitutional interpretation and move on to the broader fight about the meaning of the Constitution. In a series of articles and two landmark books, Akhil Amar has painstakingly examined the Constitution’s text and historical context and made the case for a more progressive reading of the Constitution, showing how often the Court has strayed from the original meaning of the text to reach conservative results. Just as important, Amar has developed a powerful constitutional narrative for progressives to counter the Tea Party’s nostalgia for the founding era. Amar reminds us of the arc of our constitutional progress: to consider, in other words, not simply the original Constitution of 1787, but the whole Constitution as amended throughout the nineteenth and twentieth centuries. The amendments added over the course of two centuries have often been the result of liberal and progressive reform efforts and have ended slavery, expanded the right to vote, and given the federal government important new powers to address national problems. They have made America the “more perfect union” we live in today, and they are what make the Constitution a remarkably progressive document.

In a 2005 article for Slate, published in the wake of his landmark book, America’s Constitution: A Biography, Amar issued a challenge to progressives, asserting that “there are many reasons to question the idea that modern liberals should abandon constitutional history rather than claim it as their own.” A significant number of left-leaning scholars have since heeded this call and produced a body of scholarship documenting the progressive promise of the Constitution’s text and history. Jack Balkin, in particular, has written a series of articles taking on some of the right’s most oft-asserted claims about the Constitution, including the idea that the Constitution cannot appropriately be read to protect a woman’s right to reproductive choice and the argument that the Constitution created a weak and limited federal government unable to address national problems like the health-care crisis. These points have been contested and will not, by any means, end the broader public debate about these hot-button topics. But they do offer a way out of the cul-de-sac of defending the ambiguity of the Constitution and the difficulty of judging in which progressives find themselves.

The Constitution’s text and history do not always point to progressive outcomes, but that can’t be the test for an approach to constitutional interpretation. Nor are we suggesting that an inquiry into text and history will yield a precise answer to every constitutional question. Constitutional adjudication often requires two steps—determining the meaning of the constitutional provision in question as precisely as possible, and then applying that meaning to the issue at hand. That second step may entail following precedent, or it may require reliance on broader theories of adjudication summarized by Stone and Marshall, like judicial restraint or political process theory.

What we are saying is that progressives should linger far longer on the first step, even in cases involving the Constitution’s most open-ended language, rather than sailing right past this step in the often mistaken belief that a close examination of the Constitution’s text and history will offer little of value. Even more important, we think progressives need to spend less time explaining how hard and open-ended judging is and more time explaining why the Constitution provides concrete, progressive answers to a lot of important questions.

With an activist conservative Court, and with the Tea Party seeking to fix a mostly fictitious account of our Constitution in the minds of the American public, do Stone and Marshall really believe that now is the right time to tell progressives, yet again, how “open-textured” the Constitution is, and that judging is “not a mechanical enterprise”? In an age in which activism by the Roberts Court threatens hallmark achievements of progressive presidents, past and present, progressives must fight hard over the future of the Supreme Court. But we also must fight smart. In this case, that means declaring victory in the fight over Borkean originalism, and engaging full bore in the fight with the Tea Party and the conservatives on the Supreme Court about the meaning of the Constitution. The Constitution, we’ll often find, is on our side.

To read Geoffrey P. Stone and William P. Marshall’s response, click here.

 

Issue #21, Summer 2011
 

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