The Case for New Textualism
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.
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