The Constitutional Accountability Center (CAC) is a think tank, law firm, and action center dedicated to fulfilling the progressive promise of our Constitution’s text and history. We work in our courts, through our government, and with legal scholars to preserve the rights and freedoms of all Americans and to protect our judiciary from politics and special interests. CAC launched on June 3, 2008.
Constitutional Accountability Center (CAC) -- New Textualism
This discussion draft, written for CAC by Professor James E. Ryan of the University of Virginia School of Law, describes the rise of conservative originalism during the Reagan era and documents its success in shaping the conversation about the Constitution. It goes on to explain why the initial response by progressives was only partially successful and was in some ways counterproductive. It then explains the shift in the academy towards new textualism and reviews the important scholarly work done to date documenting the progressive promise of the Constitution’s text and history.
"Laying Claim to the Constitution: The Promise of New Textualism" (pdf)
James E. Ryan  [filename date: 5-16-11]
Living constitutionalism is largely dead. So, too, is old-style originalism. Instead, there is increasing convergence in the legal academy around what might be called "new textualism." The core principle of new textualism is that constitutional interpretation must start with a determination, based on evidence from the text, structure and enactment history, of what the language in the Constitution actually means. This might not sound revolutionary. But it is.
These facts have obscured, at least from the public, an important shift in the legal academy regarding constitutional interpretation. For years, the dividing line was drawn between conservatives who favored looking to the framers' "original intent" when interpreting the Constitution and liberals who instead favored the idea of a "living Constitution." Conservatives like Robert Bork viewed the Constitution as having a fixed and fairly precise meaning, which in conservative hands usually coincided with the preferences of contemporary conservatives. Liberals, by contrast, argued that the Constitution must evolve to meet changing circumstances.
Each side in this old debate faced withering criticism. Progressive academics pointed out the numerous problems with relying on original intent, ranging from the difficulty of ascertaining that intent to the historical fact that the framers themselves did not believe that their intent should control constitutional interpretation. Conservatives, in turn, chided liberals for suggesting that the Constitution lacked a determinate and fixed meaning and was thus sufficiently malleable to allow contemporary judges to read their own views into the Constitution. More generally, conservatives pointed out that liberals did not really have a genuine theory of interpretation -- even if there were problems with original intent, as the liberals charged, liberals offered no principled alternative that would preclude judges from basically making it up as they went along.
The text of the Constitution, properly read, will not always guarantee a progressive outcome, to be sure. But neither will it always guarantee a conservative one. The Constitution belongs to both parties and to all citizens. For too long, however, liberals and progressives have allowed conservatives to co-opt the Constitution, both within and outside the courtroom. The academic convergence on "new textualism" is an important first step in releasing the Constitution -- the real one -- from the grip of conservatives.
[...] Now, when conservatives claim that the Constitution, in whole or in part, is a conservative document, progressives can and should say: "Not true, and I'll show you why."
For more such "New Textualism" Constitutional analysis ...
Text & History -- Constitutional Accountability Center Blog
The Constitution: Text and History (CAC)
CAC’s work is rooted in the Constitution’s text and history. We make our arguments through careful scholarship based on what the Constitution actually says and how those words came to be in our founding document and its amendments.
Modern conservatives are correct to insist -- over the claims of many in academia and some on the bench -- that constitutional text and history are vitally important. But conservatives misread text in important areas and too frequently rely on bad or incomplete history. CAC believes constitutional text and history are vitally important and that on most critical issues they point in a progressive direction.
What DID those Founders really mean? Why DID they do what, when?
No worries fellow citizens, we may have a "final arbitrator" of the Founders' "Original Intent" ... a Decider who's name is not Perry, Rand, Bachmann, or Bush ... or their SuperPac smart-ALEC backers ...
Yale Law Journal ponders the wisdom of IBM robot Watson as a judge
by Dan Nosowitz, Popular Science -- Sep 10, 2011
The essay notes that Watson could be of particular use to a certain type of judge or legal scholar: the new textualists. She writes: "New textualists believe in reducing the discretion of judges in analyzing statutes. Thus, they advocate for relatively formulaic and systematic interpretative rules. How better to limit the risk of normative judgments creeping into statutory interpretation than by allowing a computer to do the work?"
Says Cooper, "there are three important elements of new textualism: its reliance on ordinary meaning (the premise), its emphasis on context (the process), and its rejection of normative biases (the reasoning)." From that vantage point, Watson wouldn't be so much a judge (much as we'd love to see a massive black judge's robe draped over Watson's storage array) as an assistant or clerk, using its power to decide, for example, what the most "ordinary" use of a word is. Humans have to rely on instinct and experience, but Watson can systematically measure that sort of thing, narrowing down the possible meanings of words to eliminate uncertainty. [...]
Welcome to that database-driven future, my fellow citizens. Move over, Lexis-Nexis, there's a new "final arbitrator" in town ...
Hold onto your "context-based" Search Engines, people ... we may need them.
[Editorial Note: using IBM's Watson to systematically apply the the principles of "New Textualism" has NOT been endorsed by the CAC Think Tank, as far as I know. ...
Watson, perhaps you can answer that query for us, please? ]
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