The Promise of New Textualism

There's an emerging consensus in constitutional interpretation, and it overshadows the lingering disputes between conservatives and progressives over the merits and demerits of originalism and living constitutionalism.  That consensus is over the primacy of constitutional text.

So argues James E. Ryan (UVa) in a new discussion paper released last week by the Constitutional Accountability Center, Laying Claim to the Constitution: The Promise of New Textualism.  Ryan carefully traces the history of originalism(s) and progressive constitutionalism and claims that the formerly diametrically opposed methods of constitutional interpretation now share a key feature: a principal focus on text and its meaning. 

According to Ryan, this consensus doesn't represent the triumph of originalism, or textualism, or strict constructionism--the isms that conventionally veil a conservative interpretation.  Instead, both conservatives and progressives gave a little in arriving at this consensus.  Ryan explains:

The "new" part of new textualism signifies how it differs from earlier approaches to the text, both by those on the Left and those on the Right.  New textualists reject the facile assumption of liberal academics that the text is hopelessly indeterminate and therefore essentially useless when it comes to deciding modern constitutional issues.  Instead, there is a recognition that some readings of the text are more plausible than others, and that the most plausible reading of the text can at least narrow the range of possible outcomes, even if it cannot settle every single question.

At the same time, new textualists reject the equally facile assertion of some conservatives that the text, properly interpreted, yields precise answers to just about every question imaginable. . . .  In rejecting this simplistic view, new textualists remain faithful to the general language used in some constitutional provisions and insist that the language and the principles it embodies must prevail.  Expectations among the founding generations of how that language might apply to a given situation can help elucidate the meaning of the text, but they cannot be substitutes for the text itself.

In short, new textualists recognize that the text is both more determinate than some have claimed and less determinate than others have claimed.  Their commitment is to take the text on its own terms.  And their aim is to elucidate the meaning of the text, which often requires understanding its purpose.

Laying Claim, at 22.

And moreover, new textualism favors progressives as much (if not more) than conservatives in reading and applying the Constitution:

[The new textualism] has opened a rich vein of scholarship that sheds light on the best meaning of important and contested constitutional provisions, which singly and in combination challenges scholarship suggesting that the Constitution is a conservative document.  Spurred by the path-breaking work of Akhil Amar, progressive academics are engaging conservatives on their own turf and showing how numerous constitutional provisions are more in line with contemporary progressive values than conservative ones.

Laying Claim, at 3. 

New textualism is simply a focus on the meaning of the text.  It does not end the debates on constitutional interpretation and application--in some ways it only starts new ones--and new textualists allow for other modes of constitutional construction.

To be clear, those who embrace new textualism do not insist that looking to the text and history is the only legitimate way of deciding cases.  Most new textualists make room for, among other things, stare decisis.  In addition, most new textualists admit that text and history do not provide precise answers to every constitutional question.  Thus, as I have said, they recognize that constitutional adjudication often requires two steps--determining the meaning of the constitutional provision at issue, as precisely as possible, and then applying that meaning to the issue at hand.  That second step may entail following precedent, or it may entail reliance on broader theories of adjudication like judicial restraint or political process theory.

All that new textualists are suggesting, essentially, is that courts and scholars take the first step more seriously.  Scholars from across the political spectrum agree that text and history have an important role to play in constitutional interpretation and adjudication.  New textualists are essentially arguing that scholars and courts should give more than lip service to this universally supported principle.  This does not entail caving to the Right, as some progressive critics suggest.  It instead entails taking these sources seriously and mining them for the meaning they contain, rather than sailing right past them in the often mistaken belief that they offer little of value.

Laying Claim, at 27-28.

Here, Ryan's paper becomes a call to arms.  He argues for more scholarly attention to text and history, especially among progressive academics.  And he surveys the excellent literature on text and history already out there, on everything from "Article I to the Nineteenth Amendment."  (The survey, starting on page 28, is a good starting point for anyone considering answering Ryan's call.)  He also calls for scholarly attention to the role of precedent and other "second question" sources.

Ryan's chronicling of the evolution of originalism and its detractors, and his typology of the predominant current theories of constitutional interpretion, all in the first part of the paper, are also worth a note.  Ryan offers a clear, balanced history and excellent summary of the most current approaches.

Ryan's paper was released last week by the CAC as a "discussion draft" and will appear in the November 2011 volume of the Virginia Law Review.  It's also available on SSRN.

SDS