New Textualism

  • July 11, 2011

    The Brookings Institution on July 18 will host a debate over competing visions between progressives on how to explain their understanding of the Constitution and constitutional interpretation.

    Distinguished University of Chicago Law School Professor Geoffrey R. Stone and Doug Kendall, founder and president of the Constitutional Accountability Center will debate their differing approaches, which they recently detailed in articles for Democracy: A Journal of Ideas.

    In their opening Democracy article, “The Framers’ Constitution,” Stone (pictured) and William Marshall, a former ACS Board member and a distinguished law professor at the University of North Carolina,  contend that the Constitution’s framers “understood that they were entrusting to the future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, ‘we must never forget it is a Constitution we are expounding … intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.’” (During the 2011 ACS National Convention, Stone provided a speech exploring some of his thoughts on framing the debate over constitutional interpretation. Video of his speech is available here.)

    Kendall and Jim Ryan, a distinguished law professor at the University of Virginia School of Law, explain in their opening article, “The Case for New Textualism,” that progressives “are losing the fight over the courts and the Constitution because conservatives have maneuvered us into running from, rather than embracing, the text of and history of the Constitution.” The two say, “New textualists look carefully at history – both the enactment history of particular provisions and the broader historical events that produced the need for the text – to understand the meaning of the Constitution’s text.” Kendall and Ryan offer a response to the Stone and Marshall here.

    In their response to the new textulism argument, Stone and Marshall write that in contrast they believe “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, and is truer to the Framers’ understanding than a mechanical invocation of either originalism or textualism.”

    The Brookings Institution debate will be moderated by Senior Fellows E.J. Dionne Jr. and Benjamin Wittes. Visit here for more information, including registration, about the debate.