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http://ssrn.com/abstract=1840704
 
 

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Laying Claim to the Constitution: The Promise of New Textualism


James E. Ryan


University of Virginia School of Law

May 13, 2011

Virginia Law Review, Vol. 97, November 2011
Virginia Public Law and Legal Theory Research Paper No. 2011-19

Abstract:     
Living constitutionalism is largely dead. So, too, is old-style originalism. Instead, there is increasing convergence in the legal academy around what might be called “new textualism.” The core principle of new textualism is that constitutional interpretation must start with a determination, based on evidence from the text, structure, and enactment history, of what the language in the Constitution actually means.

This might not sound revolutionary. But it is. This Article explains how we have arrived at this point, why it is significant, and what work remains to be done. In particular, it explains why new textualism is especially important to progressives, as it offers them both a principled and promising means by which to lay claim to the Constitution. New textualists are effectively rebutting, once and for all, the false but still-common perceptions that only conservatives care about the text of the Constitution and that the Constitution itself is fundamentally a conservative document. If new textualists succeed in their effort to show that the Constitution - all of it, including the amendments - is actually a quite progressive document, this reorientation would represent the most significant shift in constitutional theory and politics in more than a generation.

Number of Pages in PDF File: 37

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Date posted: May 13, 2011  

Suggested Citation

Ryan, James E., Laying Claim to the Constitution: The Promise of New Textualism (May 13, 2011). Virginia Law Review, Vol. 97, November 2011; Virginia Public Law and Legal Theory Research Paper No. 2011-19. Available at SSRN: http://ssrn.com/abstract=1840704

Contact Information

James E. Ryan (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
434-924-3572 (Phone)
434-924-7536 (Fax)

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