James E. Ryan (University of Virginia School of Law) has posted Laying Claim to the Constitution: The Promise of New Textualism (Virginia Law Review, Vol. 97, November 2011) on SSRN. Here is the abstract:
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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.
And from the text:
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Some might be tempted to label this movement ―new originalism,‖ but that is a misleading and weighted phrase, given the political baggage associated with the term originalism. The term originalism also deemphasizes the text and emphasizes the history, whereas new textualists tend to have an unrelenting focus on the text as opposed to the expectations of the framers. Originalism also suggests that the drafting history of text is the best evidence of meaning, but as Amar and others have shown, the historical context and structure of the text itself can often provide equally if not better evidence of a provision‘s meaning. Last, the term ―originalism‖ naturally directs attention back toward the original Constitution at the expense of the amendments. At a time when the Tea Partiers are pretending that the Constitution was not really amended, this is not an oversight to encourage.
And:
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These open questions and differences of opinion, while significant, should not overshadow the important agreement regarding basic principles. More and more, academics are searching for the same thing: the most plausible interpretation of the meaning of the Constitution. Rather than talking past one another, academics from the Left and the Right are having the same conversation. This is a genuinely significant step, and it ought to be recognized as such rather than discounted because open questions remain. There will never be a time when everyone in the academy or outside of it agrees on the meaning of the Constitution. But that there is increasing agreement that ascertaining that meaning ought to be the first goal of constitutional interpretation is an important moment, even though it might seem obvious to an outsider unfamiliar with past debates.
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Two comments about this fine piece:
(1) Of course, the labels we apply to theories are not important in themselves. As long as we are clear, it matters little whether we call a theory "new originalism," "original public meaning originalism," or new textualism. Nonetheless, names may be important. Some names do a better job of communicating than others. And changing the name for a theoretical position can obscure continuity and development in the evolution of a theory. As a label, "the new textualism" suffers from two defects. First, it obscures a crucial theoretical point--the idea that the meaning of the constitutional text is fixed by linguistic practice at the time the text is framed and ratified: I have called this idea "the fixation thesis." This idea is distinctively originalist. "New textualists" who reject this thesis part company from originalists in a fundamental way; "new textualists" who accept the fixation thesis are "originalists."
(2) Ryan does not discuss one of the key innovations of the new originalists--the interpretation-construction distinction. This distinction elucidates the difference between interpretation--the activity that aims at recovery of linguistic meaning or semantic content--and construction--the determination of the legal effect of the text. Again, the terminology is not important, but conflating the distinction makes explication of the theoretical space difficult and invites confusion.
Quibbles aside, constitutional theorists will want to read Ryan.
