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Monday, June 06, 2011

"Laying Claim to the Constitution"

My friend and University of Virginia law professor Jim Ryan has released a paper / report, for the Constitutional Accountability Center, called "Laying Claim to the Constitution."  In the paper, Jim reports that "[l]iving constitutionalism is largely dead[,]" as is "old-style originalism."  He continues: 

[T]here is increasing convergence in the legal academy around what might be called ―new textualism.‖ The core principle of new textualism is that constitutional interpretation must start with a determination, based on evidence from the text, structure and enactment history, of what the language in the Constitution actually means. This might not sound revolutionary. But it is. This Article explains how we have arrived at this point, why it is significant, and what work remains to be done.

Jim is an accomplished scholar, of course, and so it would make sense for me, and anyone else, to start with the assumption that any disagreements I have with the paper simply reflect either philosophical / political disagreements -- Jim's paper is aimed at "progressives" and has the aim of convincing them that they should not allow "conservatives" to occupy without a fight the "the Constitution supports our views" ground, and I'm more "conservative" than "progressive" -- or my being otherwise misguided.  That said, I came away from the paper wondering whether there was, in the end, more to the paper than a well crafted call to allies in the policy and political arenas to counter conservatives' Constitution-talk.

Jim says that "[o]f course, not all constitutional provisions line up perfectly with a progressive agenda."  I agree.  I missed, though, in the paper, any discussion of specific matters regarding which "progressives" who embrace in a more-than-instrumental way the "new textualism" are told that they have to resign themselves to the "conservatives" being right (until the Constitution is amended).  Yes, with Prof. Dawn Johnsen, Jim says that progressives need "an approach to the Constitution that respects what the Constitution says . . . that embraces the Constitution's text rather than downplays or elides it[,]" but I didn't come across (again, I might have missed) any actual occasion in which this "respect" was predicted to constrain the success of left-leaning politics.   Like Jim, I admire greatly the work of Akhil Amar and, like Jim, I think it is a mistake when "conservatives" act (though, in my experience, few in the academy do act) as though the meaning of the Constitution remains what it was before the Reconstruction and later amendments.  In Prof. Amar's work, though, what Jim calls a "holistic" approach to the Constitution's text, meaning, and structure clearly yields outcomes which, while sound and welcome (e.g., the Establishment Clause does not preclude public-scholarship programs that include kids attending religious schools), tend to be opposed by those on the political left.  (Though, if I recall, Jim has, in other work, taken the same view that I do with respect to school choice.)

Jim criticizes (respectfully, of course) David Strauss's recent book, The Living Constitution, in part because the latter relies too much on the objection that originalism would "lead to bad outcomes."  But, again, it was not clear to me that Jim's understanding and application of the "new textualism" allows for many of what he might regard as "bad outcomes."  After all, near the end, Jim writes:

Were the Constitution, in whole or in its parts, a thoroughly conservative document, disavowing its text might be the only route to follow.

So, it sounds like the main reason why we ought to "respect" the text is not because constitutional text in fact binds and constrains -- not because we in fact ought to act in fidelity with it, as our organic law -- but because it turns out (happily) that respect-for-the-text need not be seen as standing in the way of desirable outcomes, and may in fact bring them about.

Anyway . . . for more, here is Larry Solum; here is Stephen Schwinn; here is (Jim's sometime collaborator) Doug Kendall; and here is Mike Rappaport.

Posted by Rick Garnett on June 6, 2011 at 11:44 AM in Constitutional thoughts | Permalink


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I disagree with your reading of Ryan's article and conclusion that "it sounds like the main reason why we ought to 'respect' the text is not because constitutional text in fact binds and constrains." Ryan writes that "everyone is a textualist, meaning that everyone recognizes the authority of the text," which I read to say that the point on which you doubt him is such a given that it does not warrant extensive discussion. He also chides liberals for non-textual approaches that "suggested that liberals were more interested in correct results rather than a principled method of constitutional interpretation." Throughout, he criticizes both sides for results oriented reasoning. I don't assume that he is pursuing such reasoning himself. To the extent he attempts to justify "new textualism" on bases outside the law, he does so not based on his personal politics, but based on the assumption that "most Americans [Republican and Democrat] want and deserve an understandable and persuasive explanation of what the constitution actual means." Finally, your reliance on Ryan's statement that "Were the Constitution, in whole or in its parts, a thoroughly conservative document, disavowing its text might be the only route to follow" may take him out of context. The quote on its own squares with your point, but the surrounding discussion in the paper suggests to me that he is referencing the strategy of those authors he is critiquing both before and after the statement rather than his own strategy (although there is some ambiguity there).

As to your other point that Ryan does not engage in "any discussion of specific matters regarding which 'progressives' who embrace in a more-than-instrumental way the 'new textualism' are told that they have to resign themselves to the 'conservatives' being right (until the Constitution is amended)," you may be descriptively correct. But I think the implication that he is dismissive or intentionally overlooking those areas and that this is further indication of his results based motivation is incorrect. I think the prior quotes make this relatively clear. In addition when he is discussing the further work to be done in this area, he bestows his highest praise not authors pursuing a progressive agenda, but on Caleb Nelson because his article is "devoid of ideological agenda" and, thus,"a model for liberal and conservative new textualists alike."

None of this is to suggest Ryan does not have progressive goals, but just that I see--consistent with his normal work--argumentation that is about as fair-minded as most of us can hope to be.

Posted by: Derek Black | Jun 9, 2011 3:32:16 PM

Wonderful post!

Another thing missing from the paper is an argument that historical evidence of the original meaning of constitutional text is often (or even ever) sufficient to produce a "progressive" result. I argue in my own forthcoming paper that when the claims of "new textualists" are investigated, it turns out that they differ little from the claims of nonoriginalists. Pretty much without exception, these "new textualists" argue that the original meaning of constitutitonal text is so expansive and indeterminate that it accommodates all sorts of nonoriginalist arguments. It is these nonoriginalist arguments that are then advanced to support "progressive" results. (for anyone interested, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1744423)

Professor Ryan seems to believe that there has been a kind of convergence between "new textualists" such as Jack Balkin and Akhil Amar and originalists such as Justice Scalia. I doubt very much that the latter sees it that way. For my own part, I am largely persuaded by David Strauss's view that constitutional text is frequently sufficiently indeterminate to accommodate a whole lot of nonorginalist constitutional common law. But to claim that deploying these kinds of nonoriginalist arguments in favor of "progressive" results is indistinguishable from originalism is surely a bridge too far.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jun 6, 2011 6:05:28 PM

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