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.