Posted by: captainfalcon | June 17, 2011

A minor shambles on the jurisprudential left

An earlier post noted The Promise of a New Textualism, the first effort(I know of) to self-consciously develop a popular rhetoric of leftwing originalism* and to rally the troops around it. The political advisability of heeding that call-to-arms is explored in a set of posts linked here. Geoffrey Stone and William Marshall object to the left-turn to originalism; Doug Kendall and Jim Ryan [who wrote “The Promise of New Textualism”] argue for it.

Ironically, S&M’s writing in opposition to leftwing originalism is the strongest argument in its favor. Their (random and incomplete) set of stock objections to conservative originalism (it permits politically motivated anachronism; the original intent of the Framers was for legal applications to evolve**) is fine as far as it goes (which, in the public square, is nowhere). Their proposed template for leftwing public intellectuals to follow in articulating their constitutional vision is not. Here’s the recipe:

[Progressive constitutional interpretation x is correct because] The Constitution is built to endure (cite to the Framers; cite to John Marshall). This means that, while “[t]he principles enshrined in the Constitution do not change over time [nod to originalism’s “fixation thesis”] … the application of those principles must evolve [d’oh! – discredited buzzword alert] as society changes and as experience informs our understanding.” Thus [kluging it all together] “Marshall’s interpretive understanding [fixed meaning; evolving applications] reflects an approach that is true to what we might call ‘The Framers’ Constitution’.”

S&M connect this dubious formula to a proposed account of adjudication which guarantees – by way of refuting itself – that were its authors nominated to the Supreme Court they would never get passed the Judiciary Committee:

Constitutional interpretation is not a mechanical enterprise. It requires judges to exercise judgment. It calls upon them to consider text, history, precedent, values, changing social, economic, technological, and cultural conditions, and the practical realities of the times. It requires restraint, wisdom, empathy, intelligence, and courage … It is time for a new era of principled constitutionalism. It is time to return to the Framers’ Constitution.***

Ignoring the cloying pundit-speak in which it is couched, this reply from K&R correctly diagnoses the strategic problem with S&M’s proposal:

With an activist conservative Court, and with the Tea Party seeking to fix a mostly fictitious account of our Constitution in the minds of the American public, do Stone and Marshall really believe that now is the right time to tell progressives, yet again, how “open-textured” the Constitution is, and that judging is “not a mechanical enterprise”? In an age in which activism by the Roberts Court threatens hallmark achievements of progressive presidents, past and present, progressives must fight hard over the future of the Supreme Court. But we also must fight smart. In this case, that means declaring victory in the fight over Borkean originalism, and engaging full bore in the fight with the Tea Party and the conservatives on the Supreme Court about the meaning of the Constitution. The Constitution, we’ll often find, is on our side.

In short, K&R’s reply is listen to yourselves! (As I said at the start, S&M are at their most effective when self-rebutting).

S&M’s counter-reply clarifies the underlying presuppositional cause of their disagreement with K&R:

We believe, in contrast [to K&R], that the better way for progressives to articulate a genuinely principled theory of constitutionalism and win an informed public debate is to embrace the jurisprudence of John Marshall rather than the methodology of Antonin Scalia. We believe that our understanding of the Framers’ Constitution presents a more honest account of how constitutional interpretation operates in the real world … [K&R] seem to argue that complex questions of constitutional law can reasonably be resolved by resort to text alone. The plain and simple truth, however, is that [abstract] constitutional phrases … cannot thoughtfully be defined and applied to concrete situations without considering constitutional “values,” changing circumstances, “practical realities,” and the “aspirations” of the framers.

The text I have bolded highlights the presupposition in whose grips S&M – good liberals, I am sure – are caught: that fighting smart reduces to thoughtfully articulating genuine principles in an informed public debate. As Ryan put it The Promise of a New Textualism: “The Left’s real problem may [be] that they [are] too intellectually honest to endorse simplistic slogans about constitutional interpretation.”

It is, as he says, a real problem.

FOOTNOTES

* I distinguish a popular rhetoric of leftwing originalism from a scholarly rhetoric of leftwing originalism. As I say every other post, Jack Balkin has been working at developing the scholarly version for some time now.

** Though no mention of the different “levels of abstraction” at which the concepts contained in the Constitution – even fixed at the time of its enactment – can be understood. This usually comes in [analytically uneasy] conjunction with the point about how the Framers’ interpretive intent was nonoriginalist.

*** That this transition is jarring signals the hegemonic success of conservative originalist rhetoric.

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