Wednesday, May 25, 2011

The Liu Debate and the Promise of New Textualism

Doug Kendall

One of the really striking things about Goodwin Liu’s confirmation debate in the United States Senate last week was the fact that there was almost nothing said by his Senate opponents about Liu’s testimony, under oath, at his two hearings before the Senate Judiciary Committee. The reason is simple: there was not a single objectionable thing in that testimony. Instead, Senate Republicans based their entire case against confirmation upon a handful of things Liu said in prior years in his scholarship, completely ignoring Liu’s measured and compelling Judiciary Committee testimony.

This is not new. Long ago, the judicial confirmation process devolved into an exercise in cherry picking, with opponents looking for and focusing exclusively upon the most objectionable parts of the nominee’s record. But the debate last week—if you can call it that—masks how similar the testimony of conservative and liberal nominees has become in recent years about issues of judicial method. When it came to judicial method, John Roberts, Elena Kagan, and Goodwin Liu all told the Senate Judiciary Committee some version of the same thing: “judges have a limited role; they must follow the law, not make it up; constitutional interpretation starts with the text of document, which is fixed and sometimes determinative; at other times, the text speaks in more general terms and establishes principles, not rules, that judges must apply to a very different world than that inhabited by our nation’s founders.”

The cynical explanation is that judicial nominees follow boilerplate talking points during confirmation hearings that each side uses because they work—and then, once on the bench, the newly-confirmed judges toss aside these promises of legal fidelity and restraint. But maybe we shouldn’t be this cynical. Perhaps the similarity among judicial nominees’ talking points is less a result of political posturing and more a reflection of the fact that, when it comes to judicial method, there is less disagreement among liberals and conservatives than meets the eye. Despite the continued talk about the sharp divide between conservative originalism and progressive living constitutionalism, there is a good deal of common ground on constitutional interpretation that lies between these poles. Perhaps the similar testimony from ideologically diverse judicial nominees is a reflection of an emerging consensus on constitutional interpretation that is real and genuinely important.

A discussion draft of a paper written with support from Constitutional Accountability Center by James E. Ryan, the William L. Matheson & Robert M. Morgenthau Distinguished Professor at the University of Virginia School of Law, focuses a spotlight on this emerging consensus. The paper argues that the biggest disagreements among liberals and conservatives are no longer about judicial method, but rather about the meaning of the Constitution itself. Due to be published in its final version in the University of Virginia Law Review in November, the paper is entitled Laying Claim to the Constitution: The Promise of New Textualism. Here’s the abstract for the paper, which is also on SSRN:

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.

Jack is one of the scholars whose work is featured prominently in Jim’s paper, so I hope it will be of significant interest to the readers of his blog. Laying Claim to the Constitution takes on a lot of conventional wisdom on the left and on the right. We are releasing it in draft form to stir discussion and debate as the paper takes its final form. Your input is deeply valued.


I do plan to read Ryan's paper, especially because of the term "New Textualism" in its title. I recently read Saul Cornell's May 3, 2011 "New Originalism: A Constitutional Scam" in Dissent, with great pleasure, including his reference to "law office history." Now I've got to deal with "New Textualism," which may have connections to originalism, or at least some version thereof. In due course, perhaps we can expect "New, New Originalism" to be followed by "New, New Textualism" while trying to understand "Living Constitutionalism" on life support. The Holy Grail of Constitutional Interpretation remains elusive and may require a new "Construction."

I plan on reading the paper more carefully, but after a first glance, a couple of things come to mind. First, a more general hesitation/complaint, followed by some more or less specific criticisms.

(1) A lot of assumptions are made about what it means to talk about "meaning," both in this specific discussion and in this entire area generally. What one has to say about that will largely shape how one's interpretive theory shakes out. Unfortunately, the general practice is to leave the more fundamental issue unaddressed. You occasionally get glimpses of a theory of meaning, but they're often no more than that. For instance, Ryan talks about Balkin's (et al.'s) distinction between constitutional adjudication and constitutional interpretation. Balkin's distinction requires distinguishing between meaning and application. The problem is that Balkin has it exactly wrong. First, Gadamer has already taught us that meaning always already includes application. They are not separable. The assumption that one can separate the two pervades Ryan's discussion. Thus, he begins with a fundamental mistake about the nature of meaning. Second, meaning is always meaning for someone. Note that I'm not taking "meaning" here to be equivalent to its signification in a phrase like, "Oh, my, you threw me a surprise birthday party, that means so much to me!" Even in the more mundane, "I understood what he meant" kind of way, meaning is still always meaning for. There is no single, unified meaning waiting at the heart of a text to be discovered, pure of all application past or present. The meaning of something includes, integrally, the accretion of past applications, too, even all the way back to its original conception.

These are, as I said, problems relating to foundations. They are not unique to Ryan's paper. Yet without grappling with the fundamental issues about the nature of language, and more specifically the nature of meaning itself, we'll never arrive at a satisfactory (let alone even marginally acceptable) interpretive theory.

"But maybe we shouldn’t be this cynical."

But probably we should be.

"Now I've got to deal with "New Textualism," which may have connections to originalism, or at least some version thereof. In due course, perhaps we can expect "New, New Originalism" to be followed by "New, New Textualism" while trying to understand "Living Constitutionalism" on life support."

The Iron Law of Euphemism in action. They're all the same thing, switching names periodically as people figure that out, with people figuring it out faster each time.

Eventually they're going to run out of new names for the "Let's pretend a Constitution we're not amending is changing it's meaning anyway" theory.

Hans Georg Gadamer's "Truth and Method" is a great read. It helped spark a legal hermeneutics movement here in America regarding constitutional interpretation. While this movement is still alive, its progress has been stalled by the royal battle between originalism and living constitutionalism in their various configurations and versions. Legal hermeneutics deserves a stronger role. But no one legal theory will resolve how to interpret - or construe - the Constitution. I have my own "horseshoes" legal theory: Close enough wins, until the next game, as evidenced by too frequent 5-4s. There are "ringers" on the Court who provide a lot of clanging but no actual ringers, sometimes resulting in a shoddy Court with its pits.

"Let's pretend a Constitution we're not amending is changing it's meaning anyway"

Are you talking about the "originalists" who keep on changing their rules to show, "I'm still pure, really I am"!

I kinda share your cynicism since looking over the article, it does seem to be old wine in new skins. But, this still doesn't convince me you hold the true cross either.

The "new textualism" can be summed up as generalizing the original meaning of constitutional terms into all encompassing "principles" broad enough to justify the desired progressive policy.

For example, in his essay "Abortion and Original Meaning," Jack Balkin expanded the 14th Amendment to conclude:

Laws that discriminate against women and keep them in conditions of dependency violate the Fourteenth Amendment’s Equal Protection Clause because they violate the principles against class legislation, caste legislation, and subordinating legislation.

Under principles this broad, a legislature would be forbidden from enacting any fact based distinction under the law between men and women. A law which permitted men and not women to go topless in public would probably run afoul of Jack's all encompassing "principles."

In short, the new textualism is the old living constitutionalism under a different name.

I read Ryan's paper this morning and found it quite interesting and readable. I had read a number of the articles cited in the article, providing me with a better understanding of Ryan's direction. I think he was overly critical of the "Straw Men" who with their writings have forced originalists/new textualists to sharpen their writings. I like Ryan's style of not putting too much substance in footnotes that can make a paper less readable. And I note that Randy Barnett's chutzpah-titled "Restoring the Lost Constitution: The Presumption of Liberty," was not referenced, providing relief that the Constitution is neither lost nor requires restoring, rather better interpretation. Ryan's paper makes clear that it is not yet time for a Francis Fukuyama-style "The End of Constitutional Law."

And I thought of the scene in "City Slickers" when Curly (Jack Palance) said to Billy Crystal "One thing" holding up his index finger. "That's the secret of life." Crystal asked: "What's the one thing?" Curly responded, "You'll know." But there does not seem to be "one thing" "that's the secret of constitutional interpretation." I await responses of constitutional scholars to Ryan's paper, both from the Left and the Right. "The Path Ahead" for the new textualism may be as bumpy as the road of originalism.

(I note what appears to be a typo on page 4, second last line, "direction" should be "direct.")

Ryan's paper makes no reference to Barry Friedman and his "The Will of the People - How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution." That's one of my next reads, and a long one. Friedman has interesting things to say about originalism. Might he be a "Straw Man"? (I don't know - yet - if he is a liberal/progressive.)

Professor Ryan offers an interesting essay. A couple comments, if I may:

1) The Constitution is a classical liberal document, which translates into libertarian in today's parlance, in that it expressly set out a regime of limited government. It is not a conservative document except in those areas where modern conservativism and classical liberalism intersect. This is why a faithful application of the text of the Constitution will upset both conservatives and progressives in different ways.

2) The idea that the Constituion is a progressive document (apart from the handful of progresive amendments like the income tax) would have shocked the founding fathers of progressivism, who saw the Constitution as their greatest impediment. See Pestritto and Atto's excellent compendium of progressive writings American Progressivism: A Reader.

3) Amendments like the provisions of the original Constitution are limited to their text. The idea that you can impute the whole body of policy preferences of the progressives who supported equal suffrage through the voting amendment into the rest of the Constitution has no basis in law. The amendment simply gave women the right to vote and nothing more.

"Living constitutionalism is largely dead."

Living constitutionalism is simply a fact. Meanings change, whether they're in the words of James Madison and John Adams or Shakespeare, and the notes of Beethoven. Show me anyone in history who claimed to "live in the past" whom history now sees as anything else but "of his time."
Enough with the bullshit.

We always end up arguing about the meanings of words, even if all we're doing is arguing about what we value. Everyone with an opinion imagines himself as Dworkin's Judge Hercules. Everyone wants to be "right" even if it's on about defining the present.

Focus on textualism all you want, the "textualism" of 2011 is not the textualism of 1850, or 1923.

It is interesting, however, how this new interest dovetails with other themes in recent philosophy: referring to "objects" and universals, ignoring the inevitability of perspective.


Bank robbery is simply a fact, too; that doesn't mean we approve of it, or encourage it. The world may never be free of sophistry, that doesn't mean you have to adopt a constitutional 'theory' that it ought to be the main way of 'interpreting' the highest law of the land.

Larry Solum's post of 12/7/08 at his Legal Theory Blog "Legal Theory Lexicon: It Takes A Theory To Beat A Theory" is available at:

with several cites, including a Justice Scalia article on the topic.

Unfortunately, legal theory, including constitutional, cannot be tested by the scientific method.

"The world may never be free of sophistry"

Yes, such as comparing bank robbery to the inevitable fact that what a constitutional provision means in 1789 will be different in various ways than it means in 2011.

It meant something different even in 1815, after they lived some years under it and some expectations and understandings of how it worked developed.

If Brett doesn't think the Framers wasn't aware of the obvious, what the Constitution "obviously means" is even more opaque than I thought.

Anyway, now that Goodwin Liu is staying in academia, at least for the moment, his "Keeping Faith With The Constitution" remains a good read. Now available on Kindle.

Brett, bank robbery is a fact and so is historical change. To refer to what the language in the Constitution "actually means" is to argue from a form of originalism. Google the "living tree doctrine" to see how they're doing up north.

We live in the present and argue in the present. I'll guarantee you that "Keeping Faith With The Constitution" is a work of lawyerly art, just as Nino's opinions are. It's all a question of moral, esthetic, and philosophical preference.

But it's better to argue from public texts than private reason. "The ACLU is a conservative institution."
Words spoken by one of it's wise old men.

On the whole, I do think that new textualism (or whatever nice tag you put on) is moving things into the right direction. (I should admit that neither am I a lawyer, let alone a constitutional scholar, nor am I versed too much in Anglo-Saxon legal thinking, therefore, textuality in the Continental tradition is of importance to me. I also confess to a rather conservative approach.)

I think it is an illusion to imagine one is able to ever attain the truth or better: the “true meaning” of a legal provision set in “majestic generalities” (cf. then Justice’s Rehnquist 1976 essay on The Notion of a Living Constitution). As Hans Albert explains, you’ll invariably wind up with the Münchhausen Trilemma of infinite regress, logical circle, or a break of searching (“declaration ex-cathedra"). (My reading of Gadamer dates back about forty years but it didn’t move much my convictions, then).

Thus, while the Courts might reach at times a rather plausible and uncontroversial “meaning” of a constitutional provision, where they cannot, I see little argument for an unelected body to adjudicate and prescribe the other branches of government what to do. In all probability, it’s the legislature’s business. (There you have my conservatism.)

However, without having thought it through completely, I think one important principle of your Constitution - of those Jack Balkin speaks about - to me is its individualistic bias. Since in my thinking the Ninth Amendment plays a central role, I am convinced: Rights a priori exist. It might be that only in the course of history do they reveal themselves to us, but they have been there, always. Therefore, the argument that the courts “create rights out of thin aircan never be true. The burden is on the collective, i.e. the majority of the electorate or its representatives have to provide a “compelling reason” to limit a right. And it is incumbent on the unelected body of the court to safeguard those individual rights.

And, boy, am I happy to not have to explain here why I think the individual mandate is constitutional! Also, neither do I have to explain why I consider myself a libertarian socialist ;-)

Larry Solum provides a link at his Legal Theory Blog to Dr. Sean Wilson, Esq.'s "What is Originalism?" with Larry's "Highly Recommend" but without his often accompanying "Download while it's hot." I, too, recommend this paper and that it should be downloaded because it is cool. In his "Note:", Dr. Wilson, Esq. says: "The paper is written in outline form and dispenses with scholarly formality (lit reviews and citations). It's just an outline of the key points necessary to understand." The paper is short at 16 pages but long on helping to understand Originalism, including Textualism. There are footnotes; they should not be ignored. This paper is one I plan to reread each time I download a new article on a new variation of Originalism/Textualism.

The essay is good enough but it's written in the overdetermined manner of someone who wants to prove to us that he's mannerless. The prose style of "Dr. Sean Wilson, Esq" reads like Jack Webb as adolescent geek.
Go to go to the about me menu and click "who I am."
He claims to be a Wittgensteinian who see's culture "from atop rather than from within." as if his performance wasn't an aspect of culture. Frankly I prefer Taruskin.

Larry Solum created quite a stir in the legal blogosphere with his several posts on April 1st of articles by prominent authors with titles that seemed somewhat contrary to their personas that Larry "Highly Recommended." The links provided did not seem to work, and yes, being very trusting of Larry, I learned this rather quickly. But what did not dawn on me quickly was Larry's apparent reputation for Aprils Fools schticks in an earlier year. It was refreshing to learn that Larry has a sense of humor, something lacking with some constitutional scholars.

With that background, I took the bait and downloaded Larry's "Highly Recommended" paper by Dr. Sean Wilson, Esq. So this was real. But while reading the paper, Woody Allen came to mind. Woody's recent article timely with his new movie on France was in Woody's old satirical style, applying his imaginative mind to some current events.

I was the recipient many legal moons ago of an LLB. Several years later, I earned an LLM. Then, in the early 1970s, my LLB was converted into a JD, the new form of proof of one trained in the law. I gave some thought to referring to myself as:

Master Dr. Shag from Brookline, Esq.

but not for long. Perhaps Wilson has a Phd in Wittgenstein. But as I read his paper, a smile developed as perhaps his self-reference to Dr. Sean Wilson, Esq. was a bit cheeky, as I thought was his paper. In reading Wilson's paper, I had to use my interpretive skills. Maybe Wilson did not intend or mean his paper to be a spoof, satire, parody, etc, of Originalism, but that was my application. Just consider how Wilson closes his paper with an older but obviously much wiser Justice Scalia commenting on his earlier (1989) reference to himself as a "faint-hearted orginalist" to a " ... Federalist Society home crowd that maybe he could be a complete originalist these days: 'I've gotten older and crankier.' The audience laughs heartily." (From Joan Biskupic's "American Original, The Life and Constitution of Supreme Court Justice Antonin Scalia.")

I eagerly await more papers by Dr. Sean Wilson, Esq.

By the Bybee (^&*%$#@), what do you think of:

Master Dr. Shag from Brookline, Esq. - impressive?

I am, Sir, and will remain, your most humble and obedient servant.

It's sort of quick, but I may soon have to reread Dr. Sean Wilson, Esq.'s article "What is Originalism?" after devouring the last chapter of Jack Balkin's new book on his conversion. Jack doesn't look originalist. Could it be that Jack has gotten "older and crankier"? How redeeming is that?

I just finished reading Louis Michael Seidman's "Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism," 98 California Law Review 2129 (2010) [link available at Legal Theory Blog to SSRN] that the authors of the draft article that is the subject of this post might consider. Seidman is skeptical of originalism as well; he is critical of both Kurt Lash and Randy Barnett's views on the Ninth Amendment.

The excerpt from Jack's new book pretty much defines the "new textualism" as a rebranding of the same old "living constitutionalist" judicial legislation:

Because Americans have believed in a story of constitutional redemption, we have assumed the right to decide for ourselves what the Constitution means, and have worked to persuade others to set it on the right path. As a result, constitutional principles have often shifted dramatically over time. They are, in fact, often political compromises in disguise.

Jack's last chapter entitled "How I Became an Originalist" thus becomes an unintentional punchline.

1. "[T]he ultimate justification for following the original meaning of the Constitution is that the enacted text is a legal document. It is the law and universally recognized as such." (Ryan, 13)

2. "Were the Constitution, in whole or in its parts, a thoroughly conservative document, disavowing its text might be the only route to follow." (Ryan, 28)

3. "When an honest man speaks, he says only what he believes to be true; and for the liar, it is correspondingly indispensable that he considers his statements to be false. For the bullshitter, however, all these bets are off: he is neither on the side of the true nor on the side of the false. His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose." - Harry Frankfurt describing constitutional theory (or possibly summarizing the lessons, well-learned by Professor Ryan, of Cultural Software...).

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