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The New Textualists’ Finest Hour?

Thursday, June 28, 2012

The New Textualists found a receptive audience in the separate opinion authored by Justice Ginsburg and joined, mostly, by Justices Breyer, Sotomayor, and Kagan.

“Every crowd has a silver lining,” P.T. Barnum once quipped, but the New Textualists—a group of liberal legal theorists espousing a new explication of and fidelity to the Constitution’s text—should be taking the famous promoter seriously in the wake of the Supreme Court’s decision affirming a key part of ObamaCare.

Indeed, as political and legal liberals celebrate the narrow survival of the individual mandate of the so-called Patient Protection and Affordable Care Act of 2010, and while conservatives of all stripes mourn the defection of Chief Justice Roberts, some New Textualist observers—including Yale Law School’s Akhil Reed Amar and Jack Balkin, and Harvard’s Einer Elhauge—stand out among the crowd.

Ironically, these legal theorists, the vanguard of the New Textualists, were gearing up for deep disappointment by the ruling. Amar, for one, avowed that the ruling would render his career “a fraud,” venting to Ezra Klein that “here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.” It seems Amar can now breathe a sigh of professional relief.

To be sure, there was never any question that Justices Scalia, Thomas, and Alito, or even Chief Justice Roberts and Justice Kennedy, would roundly reject the New Textualists’ approach, committed as those justices are (most of the time) to a Federalist Society-style “Originalism,” or deep devotion to the meaning of the Constitution’s language and how it was understood at the time of its enactment.

For most Americans, including those who consider themselves politically informed, the only philosophical legal dispute of any importance concerns that between the evil of judicial activism and its benign cousin, judicial restraint.

Even in Roberts’s slender opinion, which affirmed ObamaCare on the most limited possible path—treating the mandate as a levy that falls under Congress’s taxing power—these New Textualists’ footprints cannot readily be discerned. After all, Roberts delivered an opinion holding that “accepting the Government’s [Commerce Clause] theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.”

Instead, though, and much more importantly, the New Textualists—who have tangled for years with their archrivals in liberal legal circles, the Living Constitutionalists—found a receptive audience in the separate opinion authored by Justice Ginsburg and joined, mostly, by Justices Breyer, Sotomayor, and Kagan.

For most Americans, including those who consider themselves politically informed, the only philosophical legal dispute of any importance concerns that between the evil of judicial activism and its benign cousin, judicial restraint. Politicians of both parties—although more often from the GOP—rail against “runaway judges” who distort democratically passed laws in favor of their own personal preferences.

Yet “judicial activism” has always been a sloppy shorthand for “decisions striking down laws I agree with,” just as “judicial restraint” has signaled nothing more than “decisions affirming acts I support.” When the Court overturns liberal precedent, the Left deems it “activist,” as does the Right when the Court nullifies conservative case authority.

Before today’s ruling, liberals, including even President Obama, have blasted the Court’s putative judicial activism while expressing their “confiden[ce] [that] the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” (A strong majority, alas, that included not a single Republican in either chamber.)

In fact, by purely “activist” standards in the abstract—i.e., the tendency to strike down legislation or overturn precedent—the Roberts Court has been substantially less activist than any of its three predecessor courts, as a New York Times study found. (The Times’s Ross Douthat recently penned a helpful post on these theories.) The Chief Justice’s narrow ruling to uphold ObamaCare nicely fits that pattern.

But among legal academics, the real action lies in the decades-old battle between Originalists and Living Constitutionalists.

Philosophically, to grossly oversimplify, Originalists hew closely to the meaning of constitutional and statutory provisions as understood when written into law, while Living Constitutionalists believe our founding document must adapt with the times and accommodate contemporary developments, while remaining true to its spirit.

In baseball terms, Originalists are National Leaguers who insist on the tradition of pitchers picking up a bat, while Living Constitutionalists prefer the American League and its designated-hitter rule, which complies more fully with the current slugging-happy zeitgeist.

Yet, as Originalists came to dominate the conversation, at least in constitutional terms, a new school of liberal legal thinking began to emerge. After all, folks like Amar and Balkin reasoned, if legal conservatives could unearth and embrace, say, the rationale underlying passage of the Second Amendment in the service of enforcing gun owners’ rights, why couldn’t legal liberals do the same for, say, the Fourteenth Amendment and affirmative action?

“That’s a ground on which political liberals can proudly stand,” Amar says, “precisely because nearly every patch of constitutional text came from four generational spurts in which [members of] the prevailing group were the liberal nationalist egalitarians of their day: the Founders, the Reconstruction Republicans, the early twentieth-century progressives, and the 1960s racial reformers.”

Amar, in particular, revived the spirit of liberal Justice Hugo Black, one of the original Originalists, albeit from the Left, in an effort to reclaim text-faithful interpretations from the conservatives.

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.

This tendency was on fine display in the ObamaCare debate, where Amar—fictionally standing in for Solicitor General Donald Verrilli, who argued the case before the Court on behalf of the administration—urged the justices to consult the Constitution’s “text, its history, and its structure as glossed by subsequent practice and precedent.” Responding to the conservative argument that a mandate to purchase health insurance could result in a mandate to eat broccoli, Amar cited an older mandate to buy… muskets: “The Militia Act of 1792 had a similar mandate, obliging Founding-era Americans to privately procure muskets, ammo, pouches, and so on,” Amar observed. “George Washington signed onto that law. And no one at the time said that mandates such as this were somehow intrinsically improper regulatory tools.”

Similarly, Elhauge, in a Daily Beast piece entitled “Don’t Blame Verrilli for Supreme Court Stumble,” urged legal liberals to more “squarely attack the challengers’ framing of the case,” citing a 1790 law “requiring shipowners to buy medical insurance for seamen” and a 1798 statute “requiring seamen to buy hospital insurance for themselves.” Root the arguments in precedent, Elhauge contended, and you might just convince a few of the swing justices.

While these arguments have obvious rejoinders that neither Amar nor Elhauge substantively address—the musket mandate pertained to national security and drew its force from the Second Amendment’s “well-regulated militia” clause, not the Commerce Clause; the maritime insurance provisions applied, like car insurance, only to those who chose to enter a particular market—they nevertheless nicely encapsulate the New Textualists’ efforts to resurrect the spirit of Black and ground their arguments in text, meaning, and understanding.

And guess what? The liberal justices took notice.

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.”

There are internal divisions among the New Textualists, as well. At the outset of the Roberts Court, Amar took to the digital pages of Slate to (gently) tweak Balkin for an overly rigorous devotion to text at the expense of original meaning.

Finally, the theories themselves—as explained above with respect to the ObamaCare arguments—suffer from certain flaws.

But for now, while the ideas of Amar, Balkin, Elhauge, and company did not ultimately win the day, they rightly take pride in the impact of their approach on the world’s most prominent legal battlefield.

Michael M. Rosen, a contributor to THE AMERICAN, is an attorney and writer in San Diego.

FURTHER READING: Rosen also writes “Love, Happiness, and Other Things Money Can’t (Or At Least Shouldn’t) Buy,” “Tyrannosaurus Ecs,” and “Lights, Camera, Crazy!” Karlyn Bowman and Andrew Rugg discuss “Public Opinion on the Supreme Court, 1937-2012.” Michael Barone says “Supreme Court Case Brings Constitution Back in Vogue.” Marc Thiessen reveals “The Real Reason SCOTUS Could Save POTUS.”

Image by Darren Wamboldt / Bergman Group

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