Check out The New Textualists’ Finest Hour? by Michael M. Rosen. Here is a taste:
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In her separate opinion affirming the individual mandate under the Commerce Clause and/or the Necessary and Proper Clause, Justice Ginsburg winked at Amar’s Militia Act historical argument, noting that “Congress regularly and uncontroversially requires individuals who are ‘doing nothing’… to take action. Examples include federal requirements to report for jury duty …; to register for selective service …; [and] to purchase firearms and gear in anticipation of service in the Militia (Uniform Militia Act of 1792).”
Justice Ginsburg, joined by the other liberal justices, also channeled Amar in writing that the mandate “addresses the very sort of interstate problem that made the commerce power essential in our federal system.” The separate opinion relied in part on a 1787 letter from James Madison to Edmund Randolph stressing the framers’ desire for a “national Government ... armed with a positive & compleat authority in all cases where uniform measures are necessary.” It’s precisely this kind of historical analysis, such as it is, that the New Textualists have been pursuing.
More broadly, Justice Ginsburg adopted Elhauge’s “reframing” of the question, focusing not on the health insurance market but the health care market, and again placing these issues in historical context. “The provision of healthcare,” Ginsburg wrote, in likening ObamaCare to Social Security and Medicare, “is today a concern of national dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s.”
Of course, New Textualist theories can hardly claim to have won supremacy. As Jeffrey Rosen reported in a revealing recent article in The New Republic, Balkin’s and others’ ideas have been met with “deep resistance” from other legal academics suspicious of any attempt to retreat from the land of the “living”—especially when it comes to shaky but crucial rulings like Roe v. Wade. Rosen quotes one scholar’s opinion that “liberals should not pretend that honest answers to vexing constitutional questions can be gleaned simply by staring hard at an ambiguous text.”
