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Posted May 25, 2011

Ryan: Progressives Should Embrace 'New Textualism'

Mitchell, Monahan, Walker

Both living constitutionalism and old-style originalism are largely dead, and it's time for interpreters of the Constitution — especially progressives — to embrace a new, principled method, Professor James Ryan argues in a new article.

"Laying Claim to the Constitution: The Promise of New Textualism," is forthcoming in the November edition of the Virginia Law Review, and lays out the case for a text-based method of constitutional interpretation that would transcend political ideology.

Ryan recently answered some questions about new textualism, the article and what he sees as the future of constitutional interpretation.

What is “new textualism”?

It’s a term I use to describe an emerging consensus in academic approaches to constitutional interpretation. As the article describes, living constitutionalism is largely dead. So, too, is old-style originalism. Instead, there is increasing convergence in the legal academy around what I call “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 like a big deal, because everyone has always paid lip service to the primacy of the text. But the difference now is that scholars are paying more attention to the text and working harder to elucidate its meaning by examining not just the language in the Constitution but the enactment history and context surrounding the enactment. The article basically explains how we have arrived at this point, why it is significant and what work remains to be done.
 
What first interested you in this subject and how did the article evolve?

It evolved from conversations with a classmate of mine, Doug Kendall, who started the Constitutional Accountability Center, which is dedicated to showing how and why the Constitution is actually a progressive document and why progressives should embrace the text and history of the Constitution rather than run from it. I first wrote a review essay, in 2007, which discussed some of these issues. Doug then asked me to write a report documenting the growth in scholarship among progressive academics that seeks to uncover the meaning of constitutional provisions that have long been thought hopelessly vague or consistent only with a conservative agenda. That report ultimately turned into this article.

You write that progressives should embrace new textualism. Why?

A couple of reasons: First, I think taking the text seriously and being committed to the text is the only politically defensible approach to constitutional interpretation. For decades, liberals have been clobbered by conservatives, and rightly so, for having no convincing theory of interpretation. Instead of claiming fidelity to the text, liberals had a number of sophisticated but opaque theories about interpretation that downplayed the importance of the text. Conservatives, by contrast, stated that they were bound by the Constitution, period. Conservatives have not always practiced what they preached, but they were preaching the right message. They therefore dominated discussions about the Constitution. To the extent progressives embrace the text, conservatives can no longer claim that they alone care about the actual Constitution. I think that has huge implications not just for academic debates but for political ones as well, especially when it comes to selecting judges.

Second, I think scholars like Akhil Amar are basically correct in arguing that the Constitution is not a fundamentally conservative document, which lines up perfectly with the platform of the modern-day Republican Party — much less the radical agenda of the Tea Party. It’s not perfectly progressive, either, but I think Amar is correct in arguing that progressives should embrace the text and history of the Constitution.

How is new textualism different than originalism?

It depends a little on what’s meant by originalism. New textualism is different from original-intent originalism because it focuses on the original public meaning of the text rather than the intent of the framers or ratifiers, on the theory that the text is the law, not the subjective intentions or expectations of those who drafted or voted for the text. It’s different from original-meaning originalism, as practiced, because it emphasizes fidelity to the text rather than expectations about how that text should be applied at a particular moment in history. The key distinction here is that new textualists take the text as they find it, meaning that they accept that some provisions — like “equal protection” or “cruel and unusual punishment” — set out principles rather than precise rules. Those principles might require different outcomes as circumstances change. This does not mean that the principles themselves change but that their application might change as facts change. So new textualism incorporates the idea of change a bit more than originalism does.

Would using this methodology to interpret the Constitution be the same as searching for original meaning?

Yes, to a certain extent. Looking to past practices or past expectations about how to apply the text is often what originalists look for — and little else. New textualists look to this as evidence about what the words mean but recognize that other evidence matters as well, including the broad historical context in which the language was adopted, other provisions in the Constitution, the structure of the Constitution and the government it creates. It’s a more holistic search for the meaning of the words used and the principles the words enshrine rather than a specific list of practices that were thought at the time of the framing to be constitutional or unconstitutional.

You write that new research shows that many constitutional provisions are consistent with progressive principles. What are some examples?

The article has a section that summarizes a lot of the work that has been done, which I can’t hope to reproduce here. Suffice it to say that work has been done on everything from congressional power through the 19th Amendment and everything in between that shows why the Constitution supports progressive outcomes. From the powers of Congress to enforce the 14th Amendment, to the rights of women, to the (lack of) speech rights to corporations, to the ability to regulate gun use, there is now a substantial body of scholarship claiming with some force that the best meaning of relevant constitutional principles is consistent with progressive outcomes. It’s not a perfect fit, and some of the claims are controversial, to be sure. But the work is serious and demands a serious response from those inclined to disagree. I think that’s an enormous improvement over progressive constitutional scholarship that does not start with the text.

Do you see this as a method of interpretation that would transcend political orientation?

Yes. I think there is movement toward a common ground of taking the text seriously. There are plenty of fights, of course, about what the text means, and sometimes these break along ideological or political lines. But at least the two sides are having the same conversation and debating the same question: What does the Constitution mean?

What comes next for new textualism?

I think more work on important constitutional provisions can and should be done, along with more work that synthesizes the work of others to paint a broad picture of the Constitution that challenges the conventional wisdom that it is basically a conservative document. In addition, I think more work needs to be done regarding what courts should do when the text runs out. A number of important provisions, as I’ve mentioned, establish principles rather than precise rules. Those principles might be consistent with a range of correct outcomes in concrete cases. The question then becomes how to choose among that range, and text and history can’t answer that question. Constitutional adjudication thus entails two steps: What does the text mean, and how do you apply that text to a concrete dispute. I think more work needs to be done on the second step.

What are you working on next?

Constitutional theory is a bit of a sideline interest of mine. I think it’s very interesting and important, and I like writing about it. But most of my scholarship has been about law and education, and I expect that balance will continue. I’m working on an article about special education, and plan after that to write about school finance plaintiffs and what they really want from litigation. I plan in the future to look outside the U.S. and to begin a project on comparative education law, which I imagine will occupy me for some time.

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