Elizabeth Wydra gave an ACS lunch talk on March 5, titled “The New Textualism: How to Use the Text and History of the Constitution to Make Progressive Arguments”. Wydra is chief counsel for the Constitutional Accountability Center (CAC) in Washington, D.C. The organization seeks to use textualist constitutional interpretation to further progressive causes like same-sex marriage equality, reproductive freedom, and civil rights legislation.
Wydra addressed questions about both the legal theory behind this approach and its specific applications. For instance, CAC filed an amicus brief for the ACA case supporting the idea that the text of the Commerce Clause allows the ACA. The statements of the Founders indicate that the clause should be interpreted broadly in areas that render the individual actions of the states “separately incompetent” and which concern the general welfare of American citizens.
She also defended historically progressive decisions on the basis of textualism. She argued that the broad language of the Fourteenth Amendment indicates that the obviously unequal protection afforded to African-Americans was in violation of the text itself regardless of the opinions of the writers with regard to the particular issue itself.
Wydra also dealt with an interesting argument that the attempt to engage conservatives through the method of textualism undermines progressive attempts to argue for a more evolutionary approach to constitutional interpretation. She countered that effective appellate strategy includes every approach reasonably available to a lawyer. As such, it is unwise to simply cede the originalist argument. In addition, no legal interpretative method is always determinative. There are many cases in which a restricted reading of the constitutional text could yield two meritorious, diametrically opposed arguments. Hence, a superior argument should be able to appeal to more than one legal philosophy.