Very, very broadly, the nation is divided into two camps on the substantive questions surrounding judicial nominations. Roughly half the nation supports textualism, and the other half supports the living tree doctrine. I doubt most people could actually name these doctrines, but it is generally what we are arguing about when we argue about whether a judge is good or bad.
(Or, at least, it should be. Many Americans, on all sides, seem to just want judges who declare laws they like and repeal laws they dislike. But that’s the role of the legislature, not the judiciary. Anyway. Back to textualism.)
Textualists believe that a court must interpret the law according to its original public meaning. This may involve a great deal of investigation into what people actually thought a law meant at the time it was passed, and there are some common misconceptions about how this is done… but, in the end, for textualists, what judges think the law says controls what the law means.
Living-tree advocates (or “living Constitutionalists“) believe that a court should interpret the law by finding new meanings for the original text (or new text altogether) based on modern beliefs, even without going through the amendments process. In this school of thought, what judges think the law means (in a very broad sense) controls what the law says.
I’ll give two examples. First:
The Constitution’s 8th Amendment forbids “cruel and unusual punishment.” It does not give any further information.
A textualist asks: if you showed a reasonable lawyer in 1791 (when this amendment was passed) a punishment, would that person consider it “cruel and unusual”? Such a lawyer would certainly say that being drawn-and-quartered fits the definition of “cruel and unusual.” Indeed, the 8th Amendment was drafted precisely to bar well-known torture methods like that one. But such a lawyer would also certainly say that being executed by slowly cutting you into pieces with a laser is “cruel and unusual.” You’d have to show him what a laser is first, but the original public meaning of “cruel and unusual” covered that.
On the other hand, putting someone to death relatively painlessly, without intentionally inflicting pain — by hanging, firing squad, or modern lethal injection, was not part of the 8th Amendment’s ban on “cruel and unusual” punishment. A textualist may think the death penalty is a bad idea, or that it’s immoral, or that legislatures ought to ban it, or that some particular version of it is so unintentionally torturous that it crosses the line — but will never conclude that the death penalty is simply unconstitutional. If you want to make it unconstitutional, the textualist says, go pass an amendment.
The living-tree theorist looks at this quite differently. Such a judge doesn’t look at the meaning the words “cruel and unusual” had in 1791, but at what meaning they have today, both in society in general and in the judge’s own viewpoint. And that judge may well decide that taking away a criminal’s life, for any reason, is “cruel,” and thus the death penalty is unconstitutional.
Okay, example #2. It’s the most explosive example I have. It’s also what most of our substantive judicial arguments are really about, deep down.
The Constitution says nothing about a right to abortion, but it does provide guarantees of “liberty” and “equal protection.”
Based on how those terms were understood at the time, those terms would not include a right to abortion. Therefore, textualists believe there is no constitutional right to abortion.
However, based on how those terms are understood by some judges and voters today, some might argue that “liberty” should include a right to abortion “by modern standards.” Therefore, living Constitutionalists believe that there is a constitutional right to abortion.
You can see these arguments play out in the current key Supreme Court precedent on abortion, Planned Parenthood v. Casey, where Justice Scalia turns in a straightforward textual argument (which starts on page 979) that abortion rights are a matter for states to decide, while Justice Kennedy’s plurality opinion (which starts on page 844) contends that abortion lies at “the heart of liberty… to define one’s own concept of existence.”
Because abortion has become the central polarized issue in our judiciary, Republicans, who support unborn rights, have become strongly aligned with textualists, while Democrats, who support abortion rights, have become strongly aligned with the living Constitution theory. Every single person on President Trump’s Supreme Court List is a vetted textualist. By contrast, Justice Ginsburg was the clear leader of the living-tree movement in the United States at the time of her death.
Because of this strong political alignment, textualists are often referred to as “conservative” or “right-wing” judges, and living-tree theorists as “liberal” or “progressive” or “left-wing” judges. And this alignment is more than a historical accident; there really is some degree of natural sympathy between progressivism and living-tree theory, and between conservatism and textualism. But that’s another post for another day. You now know the vocab and can get back to whatever you were reading before you found this article.
Full disclosure: I’m a committed textualist. It will not take you long looking around this blog to find strong evidence of that, and I think a pretty good, quick, funny intro argument for textualism is Michael Stokes Paulsen’s “Is Bill Clinton Unconstitutional?: The Case for President Strom Thurmond”.
EDIT: In this post, I referred exclusively to textualism, implying a distinction between textualism and originalism. Some readers asked about this on Facebook, and I’ve followed up with another follow-up post explaining the relationship between the originalists and the textualists.