The New Textualism, Progressive Constitutionalism, and Abortion Rights

Jack Balkin‘s Living Originalism deserves all of the attention that it has received. It is one of the most important works of constitutional theory in recent years, and it is likely to inspire much theorizing by others. Jeffrey Rosen‘s contribution to this symposium on Balkin‘s book is brimming with insights. In clear and concise prose, Rosen usefully categorizes the different kinds of progressives and conservatives who occupy today‘s political and legal landscape. He wisely counsels legal progressives not to run from constitutional text and history where those forms of authority can help to decide constitutional questions. He correctly advises that possessing the ―right‖ constitutional methodology is no substitute for defending a substantive constitutional vision. And he makes a thought-provoking case for the present pertinence of Justice Louis Brandeis‘s approach to judging. It is no wonder that Rosen is a leading public intellectual about the subject of the U.S. Supreme Court. In this Essay, I offer a few thoughts in response to Rosen‘s contribution. I will first focus on what he writes about the ―new textualism.‖ I will then reply to what he intimates about the continuing validity of Roe v. Wade. In short, I will argue that Rosen offers progressives little reason to accept the new textualism or to reject Roe in the name of legal fidelity