For decades, conservatives have embraced an originalist approach to the constitution. Either the intent or the text of the Constitution should be the guiding force determining constitutional meaning. Liberals are apparently embracing originalism now and calling it "New Textualism."
Jeffrey Rosen comments on the development, and suggests that it would have helped the administration's argument supporting the individual mandate before the Supreme Court, but at a cost:
. . . the New Textualists—insist that arguments grounded in constitutional
text and history can be deployed just as effectively to support liberal
policies as conservative ones.
So far, the New Textualists have an impressive track record of
winning over conservative justices and judges. But their ideas are being
strenuously resisted by the liberal legal establishment—both by
administration lawyers like Verrilli and an older generation of
scholars, who fear their approach will ultimately lead to the downfall
of landmark precedents, including Roe v. Wade.
More commentary on this approach:
- The Promise of New Textualism.
- The Case for New Textualism.
- Old Dictionaries and New Textualists.
- Laying Claim to the Constitution.
