The significant points of agreement between the two sides of this debate are now well established. We agree that conservatives currently have the upper hand in the public discussion over the Constitution and the future of the Supreme Court. We agree that liberals have largely failed to explain the “logic, legitimacy, and coherence” of our own approach to constitutional interpretation, and that this failing must be addressed if we are to have any hopes of winning in the courts, in polls, and in judicial confirmation battles. Stone and Marshall even agree that the “new textualist” approach we describe in our opening essay has “political resonance,” while their approach—which celebrates the role of judges in bringing “constitutional principles to life in an ever-changing and ever more complex society”—is, in their own words, “a harder sell to the public.”
Stone and Marshall nonetheless argue that progressives must power through this harder sales job and “initiate a concerted public effort to ensure that these points are heard and understood by law students, lawyers, judges, public officials, and the American public.” Basically, they advise progressives to keep saying what they have said in the past, but louder and with more feeling this time. It won’t work.
It’s also unnecessary. Stone and Marshall argue that their approach is principled and honest, whereas new textualism is not. New textualism, they claim, relies on “text alone,” and they admonish that “liberals should not pretend that honest answers to vexing constitutional questions can be gleaned simply by staring hard at an ambiguous text.” This is a caricature of new textualism, which looks not merely to text but also to context, structure, and enactment history. More importantly, though, this resort to caricature reveals the stubborn resistance of Stone, Marshall, and other traditional liberals to concede that the Constitution might have some determinate meaning beyond a few clauses here and there, like the one requiring two senators per state.
It is ironic, therefore, that Stone and Marshall suggest that we should “embrace the jurisprudence of John Marshall rather than the methodology of Justice Scalia.” We could not agree more, but that’s because Marshall was one of the greatest textualists—in the broad sense of that term—ever to grace the Court. If he is the patron saint of any form of interpretation, it is new textualism.
Indeed, the reason Marshall is almost universally viewed as America’s greatest justice is that his most famous opinions, including Marbury v. Madison and McCulloch v. Maryland, have defined for generations of Americans what the Constitution means. He achieved this end not by simply “staring hard at an ambiguous text,” but rather by carefully weaving together arguments from the Constitution’s text, structure, and history. There is nothing “mechanical” in his jurisprudence—he never forgot that it was “a Constitution we are expounding”—nor did he ever lose faith in his ability to find answers to important constitutional questions by careful examination of the Constitution itself.
In fact, one of the central problems for progressives is that the Court has lacked a modern John Marshall—one capable of achieving consensus on the basic meaning of the Constitution as amended. Instead, we have had justices and entire courts willing to disregard the obvious meaning and purpose of crucially important and transformative amendments.
Here, the post-Reconstruction Court deserves special note, as that Court set out to obliterate the Fourteenth Amendment rather than to faithfully interpret it. Just a few years after the Fourteenth Amendment’s ratification, the Court wrote out of our charter the Privileges or Immunities Clause—the amendment’s explicit protection of substantive fundamental rights—and gave an unjustifiably narrow construction to Congress’s power to protect the constitutional rights of all Americans. We are still living with the consequences. Without a clear textual mandate to protect substantive liberty, the Court’s conservatives have waged an unrelenting attack on rulings such as Roe v. Wade that recognize and protect substantive fundamental rights. At the same time, they threaten to invalidate as beyond congressional authority the Voting Rights Act and other iconic civil rights statutes. By highlighting portions of the amendment’s text that have been jettisoned by the Court and emphasizing the amendment’s expansive scope, new textualism—far more effectively than Stone and Marshall’s political process theory—builds a foundation under the protection of fundamental liberties and the powers of the federal government to protect civil rights.
The problem for progressives is that the 17 amendments passed since the founding era are, in many respects, the heart and soul of our progressive Constitution. The absence of consensus on these parts of the Constitution means we are fighting a lot on our own turf. It is probably a pipe dream to imagine another Marshall for the twenty-first century. One of Marshall’s most famous techniques for winning consensus was to invite the other justices to his room in the boarding house in Washington they shared, where they would discuss cases over bottles of Madeira. There is probably not enough Madeira in Portugal for Justice Kagan to have similar success reaching consensus with Justice Scalia. But if the jurisprudence of Marshall is to be our model, progressives should warmly embrace the work of modern scholars like Akhil Amar who are attempting to apply the broad form of textualism practiced by Marshall to the Constitution as it exists today.
Embracing this new textualist scholarship will certainly help progressives politically. But the exchange we are having with Stone and Marshall is about more than framing and political resonance. It is also about legitimacy. Stone and Marshall contend that constitutional interpretation is legitimate “as long as it is grounded in the very reasons for judicial review itself.” This sounds fine, until you realize that the reasons for judicial review that Stone and Marshall offer—like defending against “unchecked majoritarian dysfunction”—are abstract, vague, and apparently not limited much by the text of the Constitution.
In our view, to be legitimate and accepted as such by the public, constitutional interpretation must be grounded, first and foremost, in the Constitution’s enacted text. Unless and until liberals accept that basic proposition, we will lose arguments with conservatives over the Constitution and the courts. The public will continue to favor conservative judges when seeking fidelity to the Constitution, and we will continue to miss critical opportunities to explain to America in plain and compelling terms why the Constitution is in its most vital respects a progressive document. It’s time for progressives to take back the Constitution.