The Liu Debate and the Promise of New Textualism

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.