I’ve been planning to do a post about judicial review and the implications of legal realism to so I don’t have to keep repeating things that perennially come up in comments threads. In the meantime, I’ll address some lower-hanging fruit — namely, the idea that one side in disputes over constitutional meaning can be meaningfully labelled “textualist.” Combining two comments from Sebastian H:
This thread makes all those discussions about how textualists don’t understand the huge importance of stare decisis to a living constitutionalist order look a little bit silly…No, the stare decisis critique of modern textualist theories is a legitimate critique–far more so than the typical critiques. It is about law as a system, rather than a single point of reference. The problem with the approach of this thread is that it undermines all of the common law/system defenses of living constitutionalism which are essentially the only strong defenses that it has.
To state the obvious, “textualism” is abjectly useless as an interpretative method for the vast majority of constitutional cases of any interest. It’s not that the text of the Constitution doesn’t resolve some issues. It certainly does dispositively resolve questions like “is Mark Zuckerberg eligible to run for president in 2016?” or “Does Wyoming get the same number of Senators as California?” But of course you don’t need any kind of grand theory to resolve questions like this, which is why questions like this don’t end up in the Supreme Court. Everyone is a “textualist” when the text of the Constitution does not leave any meaningful room for dispute. Here, too, we can see the not-very-subtle self-aggrandizement in the self-application of the “textualist” label: “I am following the text of the Constitution and you are ignoring it.” It’s just nonsense.
On the questions that are actually in enough dispute to end up at the Supreme Court, however, “textualism” brings absolutely nothing to the table. We can read the text and see that it prohibits “cruel and unusual punishments” and “unreasonable searches and seizures” and abridgments of the “privileges or immunities of citizens of the United States” and guarantees the “due process of law.” What do these deliberately broad and abstract phrases tell us about how to apply them to concrete cases of enough interest to reach a federal appellate court? Absolutely nothing, needless to say. (The framers of the 14th Amendment nearly universally understood that which judge was doing the interpreting was far more important than the precise wording of a constitutional provision, creating a serious meta-problem for “textualists” who also call themselves “originalists” where questions concerning the 14th Amendment are concerned.) Judicial review involves discretionary choices made my judges; it’s just that some people admit it and some don’t.
I would also note that there is one live constitutional controversy to which the text of the Constitution provides a nearly definitive answer: whether the 11th Amendment bars suits against state governments without the consent of the state by citizens of that state. The answer the text provides is “it doesn’t” — Hans v. Lousiana and its Rehnquist Court progeny are an example of cases that a liberal Court should find were wrong the day they were decided, are still wrong, and should be overruled. Most people who call themselves “textualists,” however, insist that it does, which should tell us something about “textualism.” Many “textualists” also call themselves “originalists.” I’ll leave that for the next post, but the tl; dr is that 1)orignialsm is unattractive as a normative theory; 2)in the vast majority of interesting constitutional disputes it does not provide determinate answers, because different levels of abstraction and the ambiguities of historical evidence provide multiple answers to most questions; and 3)in the rare cases where “originalism” seems to provide a definitive answer in practice “originalist” judges don’t feel constrained to apply it anyway.
With respect to stare decisis, it’s crucial to distinguish between the vertical and horizontal application of precedents. Obviously, lower courts applying the precedents of higher courts in good faith is an important part of the judicial system, and not doing it is bad judicial practice (with the understanding that there are always going to be marginal cases where there is good faith disagreement about what a precedent requires in a particular case.) In terms of the Supreme Court dealing with its own precedents, virtually everyone agrees with Tushnet in principle. That is, there are some precedents that should be overruled (whether explicitly or sub silentio — I think the former is almost always preferable), there are some precedents that should be narrowed but aren’t worth overruling even if a majority would have decided them differently in the first instance, and some precedents that should be upheld. Courts have to be able to correct what they see as their mistakes in constitutional cases; the only question is when they should do it. And, like determining the meaning of the cruel and unusual clause, this inevitably entails judicial discretion.
…as a couple of commenters noted, Shelby County is another excellent example of “textualists” refusing to apply the text even in a rare case where the text would appear to foreclose the argument made by the majority. As with the “sovereign immunity” cases, the text was trumped by a structuralist argument inferred from the text — “the equal sovereign dignitude of the states.” And while I have no problem with structuralist arguments in principle this is of course a really, really bad one.