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.