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Wednesday, June 13, 2012

Rosen on the "New Textualism"

Jeffrey Rosen has a new piece at TNR about what he calls "The New Textualism" -- originalism for political liberals, in other words. It argues that liberals have failed by making non-originalist arguments for their desired results to an originalist court, and that they would stand a better chance of success if they fought fire with fire and argued for liberal judicial results "grounded in constitutional text and history." As usual, Rosen makes his points journalistically (unsurprisingly) and well. This isn't the occasion for a decent discussion of whether I agree with this approach (short version: not especially), although I do think another label is needed: there are already plenty of people running around calling themselves New Textualists. But I do want to make a couple of observations about the piece.

The first is that something is almost completely missing from the piece: any discussion of the legitimacy or necessity of "New Textualism." Scholars like Akhil Amar, whose work is discussed in the piece, have or appear to have the conviction that their approach is a sound if not mandatory one for constitutional interpretation. Rosen's article, on the other hand, is strictly about political expediency. He writes: "On both the left and the right, then, originalism is no longer a theory of judicial restraint, . . . but a means of advancing partisan preferences. . . . Given this reality, liberals might do well to set aside internecine methodological squabbles and embrace the New Textualism in an effort to change the political as well as the legal debate. Its ability to persuade conservative judges at a time of extreme polarization on the Court is striking. And one only needs to look to the Tea Party—with its ability to mobilize thousands of Constitution-carrying citizens to march on the Mall—to see its popular appeal." I suppose I should applaud Rosen for his candor. But wouldn't a little discussion of what constitutional interpretation actually requires be nice?

That's especially true because it's tough to sell this approach politically unless it carries a patina of conviction with it. I think the relationship between desired outcomes and what people think is required as a matter of constitutional interpretation is complex. I don't think most conservative originalists consciously start with a set of desired outcomes and then pick the interpretive method that will get them there, or vice versa. Nor do I think it's a happy coincidence. It involves both and neither. Liberals who want to sell liberal originalism will first have to engage in the same act of auto-suggestion, and start believing in it so thoroughly that they forget it is a strategy at all, and object indignantly and--this is the hard part, but it appears to have worked for conservative originalists--sincerely to the very suggestion. They certainly should avoid calling it a political strategy in the pages of The New Republic! I don't expect self-awareness from Bench Memos, and if liberal originalists want to succeed in their project they'll have to avoid that sort of thing as well.

The other point I'd like to make is that there's a difference, kind of, between conservative originalism or textualism's judicial appeal and its popular appeal. As either a political or a judicial strategy, it works best if both horses are pulling together. But the popular version of conservative originalism owes much of its success to its air of heroics and its appeal to apparent ancestral values and myths. It's not just a question of technical mastery of the sources, and any technical brilliance it displays would be only half as successful if it didn't have a romantic appeal behind it. Perhaps this is just my perspective, but I think that's why sweeping and romantic work like Amar's is much more likely to have popular and judicial appeal than work like Jack Balkin's, which is very clever but which I doubt has the same ability to capture and capitalize on popular sentiment. (I would add similarly that I suspect Amar's work is more effective, whether or not it's more academically impressive, when he is up in the clouds rather than down in the weeds combing through the details.)

If liberals want to succeed in swaying judges (and I'm not judging that goal one way or the other here), they're probably better off trying to get liberal judges appointed than paying attention to methodology at all. But if they want to have a long-term judicial or popular effect through methodology, they had better pay as much or more attention to the music of "New Textualism" than to the lyrics.    


Posted by Paul Horwitz on June 13, 2012 at 12:32 PM in Paul Horwitz | Permalink


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Both of the extended replies underline the lack of belief on both sides of the other side here. Thus, we have "so-called" originalism and "almost laughable" opinion. The "the determinate nature of their brand of originalism" of Scalia/Thomas repeatedly has been shown to be based on selective citation of history while each side on Heller only tells part of the story.

"Jack Balkin's, which is very clever" is a fitting statement. I don't really take him too seriously myself. It seems to me his originalism efforts are almost a sly exercise to show how open-ended that is. I don't think that's wrong but this suggests the limits of the enterprise.

Rosen has a pragmatic bent so his sentiment here isn't surprising. History is an aspect of constitutional interpretation and text and history can result in liberal results. Also, conservative originalism can be challenged from the liberal side, e.g., Madison on the Establishment Clause. And, there is a reason to be pragmatic here realistically speaking. But, we should keep in mind that originalism alone is only part of how the Constitution will actually be applied in any realistic world.

Posted by: Joe | Jun 14, 2012 9:46:24 AM

I think it is true that to stand before the Supreme Court and address them as "politicians in robes" (from Judge Posner), is unlikely to bring many votes your way. But I am not sure that finding rhethoric that resonates with the members of the Court is ever a bad idea. Because "originalism" is so much in the air, I can't imagine not at least trying to figure out an "originalist" argument going the way of my client, if I were in practice. But I am not in practice.

That judicial practicioners of what they call "originalism" fail to convince, I am thinking of Justice Scalia's almost laughable opinion in Heller, suggests that their bases for decision are not really "originalism." A political preference as explainer does not seem an unlikely explanation for opinions that are fronted with analyses that are so weak in their own terms.

Whichever way the Affordable Care Act decision comes out, a political analysis may be the best way to truly understand its real basis. That the arguments for its unconstitutionality were created before our very eyes in the last two years and that the Gun Rights Movement didn't take up its interpretation of the 2d Amendment until well along in the 1990's seems to suggest that inventive, clever, arguments that are attached to politics are what matter. If I had an issue I cared deeply about and thought the future of our society as we would like to know it depended, I would talk the talk that is in the air. Right now "originalism" in its hydra-headed present state is that talk.

Posted by: Mike Zimmer | Jun 14, 2012 12:45:50 AM

Professor Rosen's assumption seems to be that as long as one labels an argument "originalist," and perhaps offers a bit of cherry-picked historical evidence in support of the desired conclusion, the argument will carry the day even with conservative judges. This, of course, is a caricature of originalism as it is understood by conservative judges. Justices Scalia and Thomas, for example, stress the determinate nature of their brand of originalism because it is tied to historical evidence of framing-era practice. So-called liberal originalism, however, rejects such reliance on framing-era practice (dismissing it as a mere "original expected application"), permitting the understanding of constitutional text to evolve in light of changed circumstances and understandings. There is very little reason to think that that conservative originalists would be persuaded by this brand of originalism which, I argue in a paper that just appeared in the Indiana Law Journal, is largely indistinguishable from nonoriginalism (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1744423). As Justice Scalia explained, even while acknowledging that he is on occasion a "faint-hearted originalist" who may reject framing-era practice when it leads to sufficiently objectionable outcomes, once one posits that constitutional text has "evolving content," then there remains "really no difference between the faint-hearted [or liberal] originalist and the moderate nonoriginalist, except that the former finds it comforting to make up (out of whole cloth) an original evolutionary intent, and the latter thinks that superfluous." Professor Balkin, for example, claims that he has advanced an originalist argument for a constitutional right to abortion, but for originalists who argue that we must rely on framing-era practice and understanding to produce an appropriately determinate original meaning, the Constitution does not contain a right to abortion, no matter how assiduously one cherry-picks the historical evidence.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jun 13, 2012 8:03:34 PM

So you would trade candor for cognitive dissonance?

Posted by: Patrick Luff | Jun 13, 2012 5:34:59 PM

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