1 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.
- first published at Prawfsblawg by Paul Horwitz.[↩]