Laying Claim to the Constitution: The 2021 Edition
When the Constitutional Accountability Center (CAC) first released Laying Claim to the Constitution: The Promise of New Textualism in 2011, it aimed to show that pitting liberal “living constitutionalists” against Borkian conservative “originalists” was a stale way of understanding the differences between progressives and conservatives on matters of constitutional interpretation—the real divide was not so much about method, but about what meaning should be drawn from the Constitution. As CAC’s founding President Doug Kendall explained in his summary of Laying Claim, progressives can enter this debate over the meaning of the Constitution’s words on solid ground: following the arc of constitutional progress, created as the Constitution was amended time and time again through reform efforts, yields text and history that concretely support progressive outcomes.
In CAC’s re-release of Laying Claim, we wanted to add voices to the great scholarship produced by James Ryan in the original. The essays by Professors Alexis Hoag and Katie Eyer demonstrate the ways in which the Constitution’s text and history can light a path toward greater racial justice and LGBTQ equality, and show that, as Professor Hoag says, when we “look back to look forward” we can use the history and words of the Constitution as tools of liberation and greater equality for everyone.
With a substantial contingent of jurists professing to be textualists and originalists on the bench, these modes of thinking about the law are likely to dominate the conversation about rights and policies. As Professor Katie Eyer explains in her essay accompanying this re-release, “There are both principled and strategic reasons why progressive lawyers and academics ought to embrace textualism in the statutory interpretation domain—and ought not to fear originalism.” Even if motivated purely by strategic purposes, progressives should not cede the debate over the meaning of constitutional rights and statutory protections.
CAC originally released Laying Claim at an event co-hosted with the Supreme Court Institute on February 29, 2012.