One thing I’ve observed when listening to discussions about policy on conservative and progressive podcasts, or reading articles about the matter, is that conservatives tend to care about legal rationale, while progressives focus more on results. This got me thinking about how as a reasonably informed person, I could pretty easily explain originalism and textualism, the main conservative philosophies, but not the progressive understanding of how the law is supposed to work.
I asked the following question on multiple forums to get a better understanding of the other side.
In a lot of the discussions about the Supreme Court rulings, I haven’t seen much explanation about the rationale of the liberal position(s). The subtext sometimes seems to be that the court should use whatever pretext possible to get the best policy outcomes, but that doesn’t seem correct. So I’m asking if anyone can recommend a good primer on the left-wing approach to the law.
I can appreciate that there may not be one left-wing approach, just as the approaches tied to conservatism: originalism and textualism have some differences, and there are further nuances (a literal interpretation from a text can differ from a consideration of how it would be understood.) But if anyone has a good online source (video, podcast, article) explaining left-wing judicial philosophies, I would like to read it. Does anyone have a recommendation?
One response was that Breyer wrote good books on the matter, and that there were some decent articles about the unwritten constitution, as well as a discussion between Breyer and Scalia for the Supreme Court historical society that get into these differences.
There was also an argument that the constitution did not survive the Civil War, and that it was replaced by the 14th amendment, which has taken some time to be realized. Thurgood Marshall articulated this in his bicentennial speech.
While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws. And yet almost another century would pass before any significant recognition was obtained of the rights of black Americans to share equally even in such basic opportunities as education, housing, and employment, and to have their votes counted, and counted equally. In the meantime, blacks joined America’s military to fight its wars and invested untold hours working in its factories and on its farms, contributing to the development of this country’s magnificent wealth and waiting to share in its prosperity.
It was also interesting to see how some progressives really misunderstand the originalist position. For example, there was a common response that originalists would be opposed to amendments, when originalists explicitly support the amendment process. These were listed as reasons to be an originalist in an overview of judicial philosophies by the UM-KC School of Law.
5. Leaving it to the people to amend their Constitution when need be promotes serious public debate about government and its limitations.
7. If a constitutional amendment passed today, we would expect a court five years from now to ask what we intended to adopt. [Can the same be said for a court 100 or 200 years from now?]
8. Originalism more often forces legislatures to reconsider and possibly repeal or amend their own bad laws, rather than to leave it to the courts to get rid of them.
Among the reasons to be a non-originalist was the difficulty of using the amendment process, This still requires originalists to favor it.
4. Non-originalism allows judges to head off the crises that could result from the inflexible interpretation of a provision in the Constitution that no longer serves its original purpose. (The amendment process is too difficult and cannot be relied upon to save us.)
The bar association’s discussion of this frames the question as “Is the Constitution a static document, the meaning of which is set in stone until the people chisel in an amendment?“ So the idea that originalists reject the 13th and 19th amendments is absurd.
I think part of the reason people are so mistaken on this is that they have to come up with a caricature to argue against because originalism and textualism otherwise just seem so sensible when determining the role of a judge. This is helpful for conservatives. Progressives would benefit from clearly articulating their view of the courts. Much of the criticism of the right is that originalism or textualism is used as pretext for policy decisions that Republicans want, but without an articulation of a different philosophy the main defense of progressive judges is that they’re going to go for preferred policies without much pretext. There’s less sense of the neutral principles at play.