Justice Scalia, the “Living Constitution,” And the Promise of New Textualism

 

At a remarkable Senate Judiciary Committee hearing this week featuring two Supreme Court Justices — Antonin Scalia and Stephen Breyer — Justice Scalia drew laughter with his predictable line that he wished the “living Constitution would die.”

The funny thing is that, to a large degree, it already has. Dead or dying, too, is the version of originalism that came into flavor in the 1980s with the writings of Robert Bork and the cheerleading of Attorney General Edwin Meese. While political debates and media accounts largely remain stuck in the 1980s deathmatch between living constitutionalism and original intent originalism, constitutional theorists across the political spectrum have moved on.

That is the point of an article entitled Laying Claim to the Constitution: the Promise of New Textualism, written by University of Virginia Law Professor Jim Ryan, which Constitutional Accountability Center has released recently as a discussion draft.

New textualism is the name we have given to a growing consensus among scholars across the political spectrum about what is right about originalism and what is right about living constitutionalism. Like originalists, new textualists believe that constitutional interpretation must start with a determination, based on evidence from text, structure, and enactment history, of what the language in the Constitution actually means. Like living constitutionalists, new textualists believe that while the meaning of the Constitution does not change, application of those principles can lead to different outcomes as circumstances change.

New textualists also reject the parts of originalism and living constitutionalism that deserve to be permanently discarded. Living constitutionalists are wrong to the extent they argue that the Constitution’s text has no fixed meaning and that judges have the power to remake the Constitution to meet the demands of the day. Originalists are wrong to the extent they let the intent of the Framers and ratifiers trump the meaning of the words they ratified. New textualists look carefully at history—both the enactment history of particular provisions and the broader historical events that produced the need for the text—to understand the meaning of the Constitution’s text. But they do not let history or original intent trump text.

None of this is or should be very controversial. But there is a stubborn resistance among many progressives about admitting that the Constitution’s text and history actually provide clear guidance about important constitutional questions. And there is a stubborn resistance among many conservatives about following the Constitution’s original meaning when it points to a progressive outcome.

The promise of new textualism is that it offers both conservatives and progressives an apples to apples conversation about the law and the Constitution. We all need to stop fighting about labels — living constitutionalism, originalism, judicial activism and the like — and start debating what the Constitution actually says and means.

 

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