Rosen on the “New Textualism”

[first published at Prawfsblawg by Paul Horwitz.] Jeffrey Rosen has a new piece at TNR about what he calls “The New Textualism” — originalism for political liberals, in other words. It argues that liberals have failed by making non-originalist arguments for their desired results to an originalist court, and that they would stand a better chance of success if they fought fire with fire and argued for liberal judicial results “grounded in constitutional text and history.” As usual, Rosen makes his points journalistically (unsurprisingly) and well. This isn’t the occasion for a decent discussion of whether I agree with this approach (short version: not especially), although I do think another label is needed: there are already plenty of people running around calling themselves New Textualists. But I do want to make a couple of observations about the piece.

Keep reading …

 

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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