Rule of Law

CAC Releases “Laying Claim to the Constitution: The Promise of New Textualism (Discussion Draft)”

Today, Constitutional Accountability Center is releasing the discussion draft of a paper written for CAC by James E. Ryan, the William L. Matheson & Robert M. Morgenthau Distinguished Professor at the University of Virginia School of Law. Due to be published in its final version in the University of Virginia Law Review in November, it is titled Laying Claim to the Constitution: The Promise of New Textualism [pdf], and we believe that — on the eve of our third anniversary, coming up in June — it will serve as the intellectual foundation for our work in the years to come.

Here’s the abstract for the paper:

Living constitutionalism is largely dead. So, too, is old-style originalism. Instead, there 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. In particular, it explains why new textualism is especially important to progressives, as it offers them both a principled and promising means by which to lay claim to the Constitution. New textualists are effectively rebutting, once and for all, the false but still-common perceptions that only conservatives care about the text of the Constitution and that the Constitution itself is fundamentally a conservative document. If new textualists succeed in their effort to show that the Constitution — all of it, including the amendments — is actually a quite progressive document, this reorientation would represent the most significant shift in constitutional theory and politics in more than a generation.

Jim’s paper takes on a lot of conventional wisdom on the left and on the right.  We want it to stir discussion and debate and we urge readers of the draft to provide us with comments and critiques as the paper takes its final form.  We’re claiming the Constitution: let the debate begin!

(PS:  For readers of a more scholarly stripe, you can also find Professor Ryan’s paper here on SSRN.)