Liberals discover a theory to crush conservative jurisprudence.
AT THE END OF MARCH, when Solicitor General Donald Verrilli appeared before the Supreme Court to make the case for the Affordable Care Act, he was widely perceived to have choked. When he approached the podium in the packed courtroom, the stakes could not have been higher. Verrilli was defending the Obama administration’s central domestic achievement, a reform that had consumed the White House for the better part of the president’s first term. His opponent, Paul Clement, was the most sought-after Supreme Court advocate in the country, with a knack for producing a crisp answer to any question a justice could lob his way. Verrilli, a laconic former corporate litigator, had argued many cases before the Court, but he was new to his job—he’d been confirmed to succeed Elena Kagan less than a year before—and also new to the types of constitutional arguments at the heart of the health care case.
The first day of the oral arguments passed without incident. On the second day, the subject under discussion was the individual mandate—the most controversial part of the law—and, as soon as Verrilli launched into his defense of it, he ran into trouble. “Insurance has become the predominant means of paying for health care in this country,” he began, and then coughed, cleared his throat, and coughed again. “Insurance has become the prominent means of paying for health care in this country,” he continued. “For most Americans—for more than eighty percent of Americans, the insurance system does provide effective access”—he took a sip of water—“Excuse me. But, for more than forty million Americans who do not have access to health insurance either through their employer or through government programs, such as Medicare or Medicaid, the system does not work.” Later that day, audio clips of the most awkward moments proliferated on a variety of websites; the Republican National Committee spliced them together for an attack ad with the tagline: “Obamacare: It’s A Tough Sell.”
Meanwhile, the legal academy was subjecting Verrilli to a more esoteric form of Monday-morning quarterbacking. And, in the view of one group of law professors, Verrilli’s hapless presentation was the least of his sins. To these scholars, the greater problem was his entire line of reasoning. Verrilli, they maintained, had failed to invoke the most powerful constitutional defense of the law—a defense that could have proved especially persuasive to the conservative justices.
Einer Elhauge of Harvard Law School, for example, pointed out that the Founders had explicitly endorsed the concept of a health care mandate when the first Congress passed legislation in 1790 requiring shipowners to buy health insurance for their sailors. This law was signed by President George Washington. Taking a different angle, Jack Balkin of Yale Law School argued that the mandate is clearly authorized by Article I, Section 8, of the Constitution, which permits Congress to “lay and collect taxes.” Rather than getting tangled in the wonky particulars of exactly when individuals enter the health care market, these scholars were locating a justification for the law in the text of the Constitution and the historical understanding of the men who wrote and ratified it.
This approach was striking, because for a long time, conservatives alone worshipped at the temple of originalism—that is, the belief that the highest legal authority in the United States is the original meaning of the nation’s Founding document. For decades, the right brandished originalist arguments to potent political effect, casting conservative judges as sober adherents to the Constitution and liberal judges as uninhibited meddlers. In recent years, however, a growing movement on the legal left has sought to fashion its own version of originalism. Its proponents—known less than pithily as the New Textualists—insist that arguments grounded in constitutional text and history can be deployed just as effectively to support liberal policies as conservative ones.
So far, the New Textualists have an impressive track record of winning over conservative justices and judges. But their ideas are being strenuously resisted by the liberal legal establishment—both by administration lawyers like Verrilli and an older generation of scholars, who fear their approach will ultimately lead to the downfall of landmark precedents, including Roe v. Wade.
SURPRISINGLY ENOUGH, the roots of the modern debate over originalism can be traced back to an intellectual dispute between two New Deal liberals: Justices Hugo Black and William O. Douglas. Both appointed by Franklin Roosevelt, the two justices had been staunch allies for three decades, defending free speech and economic legislation. But their methodologies could not have been more different. Douglas was a living constitutionalist who believed that the meaning of the document had to evolve with the times. Black was a liberal textualist, who insisted that judges should only enforce rights that appeared explicitly in the Constitution. They parted company in the 1960s, when Douglas discovered a right to privacy in the penumbras of the Constitution that he invoked to protect the right of married couples to use contraceptives. “I like my privacy as well as the next one,” Black wrote in dissent, “but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”
In the 1970s and 1980s, conservatives such as Robert Bork and Edwin Meese responded to the perceived excesses of living constitutionalism by championing a jurisprudence of original intent. Cases like Roe v. Wade, they argued, were illegitimate because they were based on rights the Framers never imagined. Justice Antonin Scalia returned to Black’s emphasis on the constitutional text itself. Since the text was the law of the land, Scalia reasoned, there was no need to agonize over what the Framers might have been thinking. All that mattered was the document’s objective public meaning at the time it was ratified. Scalia deployed this logic in case after case in an effort to roll back not only Roe v. Wade but much of the legacy of the Warren and Burger Courts.
Scalia’s liberal critics pointed out that he was not above ignoring the Constitution’s original meaning when it clashed with his political preferences, and, in any event, his methodology must be flawed because it suggested that Brown v. Board of Education was wrongly decided, since the Framers had never meant to outlaw school segregation. In the 1990s, liberal constitutionalism fractured into squabbling camps that shared a dislike for Scalia’s originalism but very little else.
In the early ’90s, however, one liberal scholar decided to beat the conservatives at their own game: Akhil Reed Amar of Yale Law School. I had the good fortune to study with Amar at the beginning of his career, when he was very much a voice in the wilderness. Only 29 years old when I began law school in 1988 and soon to become a tenured professor, Amar was viewed by some of his liberal colleagues as a brilliant but idiosyncratic wunderkind, too convinced of his own methodology to be ideologically reliable. But he also had a deep knowledge of constitutional history and a passionate conviction that mastering it could help liberals transform the terms of legal debate.
In a series of articles and in a pathbreaking book, America’s Constitution: A Biography, Amar went on to argue that many constitutional provisions are more in tune with progressive values than conservative ones. Rather than advancing any kind of grand theory of the vision of the Framers, Amar, like Scalia, emphasized the original public meaning of the text. Unlike Scalia, however, Amar stressed the importance of considering the entire document—not only the Bill of Rights but also the Fourteenth Amendment, ratified after the Civil War, which guarantees the equal protection of the laws, as well as the amendments ratified during the Progressive era, such as the Sixteenth Amendment, authorizing a federal income tax, and the Nineteenth Amendment, giving women the right to vote. “Constitutional law should have some connection to the Constitution itself,” Amar told me. “That’s a ground on which political liberals can proudly stand, 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.”
THE PERSON most responsible for taking the New Textualism from the academy to the courtroom is a 47-year-old lawyer named Doug Kendall. Six-foot-three and athletic, Kendall is straightforward and unpretentious. An avid environmentalist, he has pictures on his office wall of Glacier National Park, which he has toured by bike.
Raised in a single-parent home in northwest New Jersey, Kendall received a scholarship to Exeter and then paid his way through college working 90-hour weeks during the summers. After graduating from the University of Virginia (UVA) Law School, Kendall and his law school housemate James Ryan—now a UVA law professor—wrote an article for the Virginia Law Review about the Takings Clause of the Fifth Amendment, which decrees that “private property” shall not be “taken for public use, without just compensation.” Traditionally, the clause had been applied to eminent domain cases, but conservatives had become increasingly successful at using it to restrict environmental regulations. Kendall and Ryan argued that the Framers only intended the Takings Clause to apply to the actual seizure of property—not to land-use restrictions that might reduce property value. “Conservatives on the court were violating every principle they purported to hold dear,” Kendall told me. “They were ... being activist when they claimed to be in favor of judicial restraint.”
In 1997, Kendall founded the Community Rights Counsel (CRC), an organization dedicated to defending environmental laws using an originalist reading of the Constitution. One of its key victories was a 2002 case in which the Supreme Court ruled 6–3 to uphold strict land-use regulations to protect Lake Tahoe from pollution. CRC submitted a brief and urged the local agency that had written the rules to hire a hotshot Supreme Court advocate, John Roberts. “His advocacy was crucial in persuading the moderates,” says Kendall of the future chief justice.
Following a string of similar successes, Kendall decided to expand his mission. “I became convinced that the same approach could be employed in a much broader range of disputes,” he told me. In 2008, Kendall formed the Constitutional Accountability Center (CAC), which has won over conservative justices in an eclectic mix of cases.
In 2009, it filed a brief in Padilla v. Kentucky, in which the plaintiff was a Honduran immigrant and longtime U.S. resident who had been arrested for transporting marijuana. Acting on incorrect advice from his attorney, he pleaded guilty, which almost immediately triggered him to be scheduled for deportation.
In a brief, CAC’s lawyers contended that deportation was an extreme penalty for Padilla’s initial crime. The Founders, they pointed out, saw banishment as one of the most serious forms of punishment. Justice John Paul Stevens echoed this point in his majority opinion deciding the case in favor of Padilla.
There is a similar story behind many leading progressive victories at the Court over the past decade. In the 2008 Boumediene case, historical research by UVA scholars on the extraterritorial application of the writ of habeas corpus in seventeenth-century England was reflected in the opinion written by Justice Anthony Kennedy extending a form of judicial review to non-citizens detained at Guantanamo. And, in several business cases, CAC may have even helped persuade Justice Clarence Thomas, the Court’s most rigid originalist.
But, of the cases where CAC’s influence can be detected, the most important was the unexpected ruling by Judge Laurence Silberman upholding the health care law for the D.C. Circuit. Silberman is a hard-line conservative, and many had anticipated him to strike the legislation down. Instead, his opinion echoed the CAC’s central argument, concluding that the Commerce Clause provides “no textual support” for the challenge to the mandate.
Of course, the Roberts Court’s conservative majority has also ignored strong historical arguments in many cases. But, on those occasions, New Textualist arguments have provided a useful line of criticism. After the Citizens United decision, Kendall testified in a 2010 Senate hearing, tracing the history of how corporations have been treated differently than people from the Founding through the Progressive era. “He took an idea and operationalized it,” Amar has said of Kendall. “He made it three-dimensional.”
Despite its success in convincing judges, the New Textualists have met with fierce resistance. Some of that resistance is generational. Liberal scholars who came of age during the heyday of the Warren and Burger Courts, and spent much of their careers fighting the originalism of Robert Bork, view the use of similar arguments as a kind of capitulation to the enemy. “Liberals,” write Geoffrey Stone of the University of Chicago Law School and William Marshall of the University of North Carolina School of Law, “should not pretend that honest answers to vexing constitutional questions can be gleaned simply by staring hard at an ambiguous text.”
Recently, I attended a conference at Yale to discuss Living Originalism, a sustained synthesis of New Textualist scholarship by Amar’s colleague Jack Balkin. Like Amar, Balkin also makes creative arguments about how the original meaning of the Constitution supports broad congressional power, the health care mandate, and the post–New Deal regulatory state, as well as much of the Warren and Burger Courts’ civil rights and civil liberties jurisprudence. What was most striking about the conference was the deep resistance to Balkin’s arguments by his liberal colleagues. “What will textualists have to give up?” demanded Neil Siegel of Duke University School of Law. “Roe v. Wade?”
Much of the skepticism of the liberal legal establishment toward New Textualism can be explained by this question. Since the words “right of privacy” don’t appear in the Constitution, many liberal scholars fear that Roe is hard to justify in textualist terms. And it’s true that Balkin’s defense of Roe is the weakest part of his book. His best argument is that the right to choose abortion might be grounded in the Fourteenth Amendment’s guarantee of equal citizenship for women, since restrictions on abortion force women to “take on the life-altering responsibilities and social obligations of motherhood,” denying them full sex equality. (Justice Ruth Bader Ginsburg has persuaded her liberal colleagues on the Supreme Court to reconceive Roe in similar terms.) But at this level of abstraction, any connection to the original meaning of the text is so attenuated that it is hard to distinguish Balkin’s living originalism from old-fashioned living constitutionalism.
On both the left and the right, then, originalism is no longer a theory of judicial restraint, as it was once described by Black or Scalia, but a means of advancing partisan preferences. For better or for worse, liberals now expect as much of the courts as conservatives do. Given this reality, liberals might do well to set aside internecine methodological squabbles and embrace the New Textualism in an effort to change the political as well as the legal debate. Its ability to persuade conservative judges at a time of extreme polarization on the Court is striking. And one only needs to look to the Tea Party—with its ability to mobilize thousands of Constitution-carrying citizens to march on the Mall—to see its popular appeal.
Indeed, every major political battle waged by the right in recent decades has been earthed in a story about the Constitution’s text and history: the attack on gun control, rooted in the Second Amendment; the attack on environmental law, rooted in the Fifth Amendment; and the attack on Obamacare, rooted in the Tenth Amendment. These types of arguments are available to liberals, too, should they choose to use them. The organization Marriage Equality USA, for instance, has strengthened the case for gay marriage by insisting that “the Constitution says everyone gets ‘equality under the law.’” “Progressives were great about this years ago, during the civil rights movement,” says Kendall, “but have lost their way since.”
The New Textualism offers other advantages, too. Ever since the presidency of Bill Clinton, Democratic presidents have focused on appointing Supreme Court candidates based on their gleaming meritocratic résumés, combined with their symbolic value as icons of identity politics. But the most successful liberal justices have been those with a clearly defined vision of liberalism, and, during the Warren era, many types of liberalism were represented on the Supreme Court.
New Textualism is expansive enough to encompass the different camps that make up not only liberal constitutionalism but modern liberalism more generally: Great Society liberals, who want to defend health care and the social safety net; neo-progressives like Barack Obama, who believe in the rule of experts; civil libertarians; women, gays, lesbians, and ethnic minorities; and Occupy Wall Street economic populists. After all, legal conservatives have succeeded in papering over their own considerable ideological differences in precisely this manner. Samuel Alito, Roberts, and Scalia favor muscular use of executive power, Kennedy is a libertarian, while Thomas is a pure Tea Party conservative. And yet all three camps have converged under the banner of a broadly defined originalism, which has allowed them to operate effectively as a partisan bloc.
The two hundred twenty-fifth anniversary of the Constitution will occur in the middle of the presidential campaign, and, along with Obama, every living former president has been invited to Philadelphia. Kendall suggests that the occasion would be a fitting moment for Obama to mount a constitutional defense of the health care mandate. “The Founders came to Philadelphia in 1787 to fix the flaws in the Articles of Confederation and to create the United States of America, a national government capable of solving truly national problems,” he told me, suggesting the type of reasoning the president could deploy. It’s a powerful argument, and it’s too bad Don Verrilli didn’t make it before the Supreme Court. Soon, Obama may find his presidency depends on his ability to make the argument himself.
Jeffrey Rosen is the legal affairs editor of The New Republic. This article appeared in the June 28, 2012 issue of the magazine.