Sunday, February 11, 2007

The Popular Appeal of Textualism

As a follow-up to Mike’s post below, I agree that Giuliani’s explanation of why he likes strict constructionists makes little sense. The main criticism of “loose” construction is that it undermines democracy by substituting the preferences of unelected judges for those of the majority. Perhaps that is what Giuliani was trying to say. But his claim that broad interpretation hurts liberties is odd, given that most judicial departures from the text have strengthened individual liberties.

But does it really matter if Giuliani’s statement makes sense? I’m not sure it does. The catchphrases he is using – “judicial restraint,” “strict constructionism,” “applying the law, not making it” – have such popular appeal that he can’t really go wrong. In the public relations war, the textualists have won. It’s hard to imagine a presidential candidate these days promising to appoint judges who will apply the “living Constitution.” And even though Justice Breyer has offered a thoughtful alternative to textualism in his book “Active Liberty,” I don't anticipate that phrase gaining a lot of traction on the cable news shows.

Part of the problem is that “strict constructionism” is such an oversimplified response to a complex issue that it’s difficult to counter in a sound bite. In this way, it’s like the “War on Terror.” Well, of course no one is opposed to stopping terrorism. But it’s hard to explain why one might have doubts about the “War on Terror” before someone like Bill O’Reilly accuses you of being French. Likewise, it takes time to explain why one might have doubts about strict constructionism: because the framers used broad language, because the Constitution was meant to endure for the ages, because the Amendment process has fallen out of favor, because even strict constructionism doesn’t prevent judges from reading their personal views into the Constitution. These are not arguments one hears very often in the 24-hour news cycle, and so someone like Giuliani can simply say the words "strict constructionism" or "judicial restraint" without having to coherently defend his position. The interesting thing is, for all the rhetorical appeal of strict constructionism, it still doesn't command the support of a majority of the Supreme Court. At least there, the complexities of the issue are still appreciated.


egarber said...

I think the reason strict constructionism wins out in the world of one-line slogans is that through its simplicity, it sounds "responsible" somehow; by implication the more liberal approaches can thereby be branded as reckless.

However, I don't think liberal construction by necessity has to elude relatively simple explanations.

If a judge believes that rights are inherent, he / she will throw a nod philosophically to the ninth amendment, and we end up with Griswold and Roe. Assuming these judges are influenced by natural rights, the "risk" is a ruling like Lochner, not Kelo (Mike mentioned that property rights are a concern for Scalia).

Anyway, it seems to me that any politician defending the Roe-ish judicial philosophy just has to say, "God gave us pre-existing intimate rights, and judges should defend them from oppressive majorities". I think that works as a guiding principle.

Thomas Healy said...

So the response to the mantra of strict constructionism is to invoke natural law? Perhaps, though I'm not sure how many opponents of strict constructionism are willing to go that far. I think one can favor the protection of unenumerated rights without identifying God as the source of those rights. But I think you're right that it would be effective as a conversation-stopper, especially on Fox News.

egarber said...

Another advantage of invoking the idea of natural rights is that a Right Winger can hardly say you're making up the law as you go. After all, you could argue that it's an originalist position, given the way Jefferson, Madison, et al took to creating an Americanized version of it.

I mean, I know it's tough to make rulings based on the ninth amendment -- but to totally ignore it (the Borks of the world) seems to me to be a form of activism in itself.

andy grewal said...

"most judicial departures from the text have strengthened individual liberties."

Has it? The strengthening of one liberty necessarily weakens the liberty of another. One person wishes to have the liberty to torture puppies; another person wishes to have the liberty to live in a world in which puppies aren't tortured. One person wishes for the liberty to live in a world where abortion is illegal; another person wishes for the liberty to live in a world where abortion is legal.

By saying that the Court has "strengthened judicial liberties," I can't help but think that all that means is that the liberties that you favor have been strengthened. Surely, the "liberty" to own a gun has been restricted.

I'm not some right-wing nut; I'm pro-abortion, pro-gay marriage, anti- gun blah blah blah. But I still think it is misleading to call Guiliani's claim "odd"; I actually think it's quite clear what he means. The people in a state no longer have the liberty to vote and select their preferences re: abortion. I don't see why that makes "little sense". When Giulani was speaking of "freedoms being hurt" (or, more accurately, when originalists speak of "freedoms being hurt," since I have no idea what Giuliani himself was thinking), they are talking about the freedom to decide what rights a society should and should not protect. That view should be attacked on its merits and not on the basis that it is somehow self-contradictory.

Thomas Healy said...

I guess it depends on how you define liberty. I think we usually use that term to mean "unconstrained" by the state, or free to engage in a particular activity. So a decision by the Supreme Court striking down a criminal ban on flag burning strengthens liberty because it removes a constraint on individual action.

I suppose it's possible to use the term "liberty" to mean the privilege of the majority to impose restraints on others. But given that most people don't use the term that way, Giuliani's statement is confusing. He could have made his point much more clearly by saying that departures from the text undermine democracy, not liberty.

andy grewal said...

fair enough.

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