New Textualism Hailed At Brookings Conference

In case you missed it a couple weeks ago, the Brookings Institution has just posted a transcript of their full-day conference on the future of liberal jurisprudence and the competing conservative legal movement.  The conference was fantastic across the board, but we at Constitutional Accountability Center were especially excited to see “New Textualism” gaining greater attention as progressives debate how to think and talk about the Constitution. The term “New Textualism” was coined in an article prepared by Professor James Ryan entitled, Laying Claim to the Constitution: The Promise of New Textualism, released by CAC as a discussion draft last May.  Laying Claim and a subsequent debate published in the Democracy Journal make the case that progressives win when we root the results we seek from the courts in  the text and history of the Constitution. At the Brookings event on December 1st, Professor Ryan presented New Textualism in a panel focusing on the liberal responses to the conservative legal movement.  What was really remarkable though was that in a panel entitled The Liberal Response, Not One But Many, which was designed to highlight the cacophony on the left about constitutional interpretation, there was at least a partial embrace of New Textualism by every one of the panelists.  Even before Jim had a chance to talk, preeminent legal commentator and Professor Jeffrey Rosen spoke at length about how New Textualism is already helping shape the debate over the Constitution.  Discussing various interpretive methodologies used by progressives, Professor Rosen explained his view that “[f]or methodology, I’ve said, the most promising, I think, is New Textualism.”  And he didn’t stop there:

[M]ost significantly, there are the New Textualists. They recognize that it’s strategically useful to beat the conservatives at their own game by making arguments about the importance of text and history. They argue the text and history honestly interpreted can lead to liberal as well as conservative results. In the academy, their most distinguished exponents include Jim [Ryan], who’ll you’ll hear from in a moment, as well as Akhil Amar [and] Jack Balkin. Doug Kendall at [CAC] is doing very important work, bringing their work to the attention of the courts in a series of briefs. My strategic sense is that regardless of your own methodological commitments, liberals have to realize that New Textualism is strategically the way to go. They have to learn the conservative lesson, put aside the small differences. In the end popular constitutionalists, even common law constitutionalists, can recognize the importance of reasoning from text and history. Like the conservatives, some can be a little more scrupulous about their textualism than others, but united under a single banner, I think, in terms of galvanizing the public . . . .  As both the Tea Party and Occupy Wall Street shows, carrying copies of the Constitution, is the most effective strategic choice to make.

Also participating on the panel were Professor William Forbath, an expert on the constitutional dimensions of American economic life, and Professor David Strauss, author of The Living Constitution.  Even though both speakers had their own perspective on how to frame constitutional issues to the American public, they seemed to acknowledge the potential power of New Textualism.  As Professor Forbath explained, “[t]he main reason conservatives dominate the national public constitutional conversation . . . is not so much they have a killer theory of interpretation as they have a clear and bold narrative about the kind of America the Constitution promises to restore. And progressives lately haven’t had a very good or cogent counter narrative.”  Professor Strauss went even further, agreeing with Professor Rosen that “it may be true that the way strategically for liberals to frame things now is some version of originalism and Textualism,” even as he primarily focused on the role of courts in acting to address failures in democratic processes. Building off of Professor Strauss’s comment, Professor Rosen returned to the idea of New Textualism during the question and answer period, arguing that there is “no reason that liberals can’t loosely coalesce under the banner of New Textualism,” since “there are no more significant differences among the substantive wings of liberalism than conservatism.”  He also expressed optimism that judges and advocates “can unite under New Textualism” when addressing such hot button issues as the constitutionality of health care reform and marriage equality, stating, “I think it’s a winning formula.” You will be hearing much more about New Textualism in the coming weeks as CAC publishes its report Laying Claim – until then you can read it at the Virginia Law Review. You can also see New Textualism in action by reading any of the amicus briefs we’ve filed in major constitutional cases before the Supreme Court and lower federal courts.