Bench Memos

NRO’s home for judicial news and analysis.

Jumping to Conclusions


Jack Balkin is back, with a voluminous response (part one, he says!) to my last entry in our exchange about originalism.  Clearly he has a lot of energy.  Cleverly–and I mean that in a nice way–he has managed to make our conversation all about my view of originalism, and no longer about his effort to refashion originalism so that it justifies abortion rights.  This is advantageous for Balkin,* since he is on much weaker ground if we keep talking about his living-Constitution-public-meaning-originalism.  I think Ed Whelan and I have already established pretty clearly that no “originalism” laying authentic claim to that label can lead one to the outcome in Roe v. Wade, by any mode of reasoning.  One important clue to what is afoot is Balkin’s useful reminder, in his latest (see his third paragraph), that in his theory original understanding and original meaning are distinct things.  For me, for Ed, and for any other originalists I can think of, whatever our other differences, this distinction is untenable and finally unacceptable.  For Balkin it is essential; it is the doorway through which his “originalism” escapes from the strictures of originalism.

But I let Balkin change the subject, and I did not lay out a comprehensive account of my understanding of the Constitution (which I would contend is not my understanding at all, to the extent it has any merit).  So I am partly to blame for any misapprehensions from which Balkin suffers as he ponders my arguments.  Still, I was not prepared for so many leaps and bounds beyond what I said, to conclusions that are not at all compelled by what I said.  With classes starting Monday and lots left to do, I will here simply identify these misapprehensions, with the briefest of comments suggesting where the wrong turn was taken.  (I promise Jack Balkin that, when I finish my current book project, all his remaining questions will be answered, and like all my readers he will understand the Constitution just right.)

  • Balkin writes that “Marshall did not say [in Gibbons v. Ogden] that the question of what was within or outside the commerce power was a political question. Otherwise Marshall’s discussion of why navigation was commerce and why the government could regulate commerce that moves between state borders would have been superfluous.”  But what he says Marshall did not say is exactly what Marshall did say–that authority over the commerce question lay with Congress and the people, not with courts.  Whether it follows that Marshall’s discussion of what Congress may regulate and not regulate is “superfluous” is another question entirely, much worth pondering.  Notice that I am not answering it here.  But insisting that Marshall didn’t say what he in fact said, because “otherwise” his opinion wouldn’t make sense to you, is an imposition of one’s own categories of thought on another, to the point of violating the text we are trying to read.  (Somehow this reminds me of Balkin’s reading of the Constitution too.)
  • I said that for Marshall (and for me), “in itself, the commerce clause implicates nothing about judicially vindicable rights, and so is, first and last, a matter for legislative judgment.”  From this Balkin infers that my essential distinction is between individual rights and “structural issues” under the Constitution, and since Gibbons presented a case of a “structural issue” of competing federal and state attempts to regulate the same activity, I must think the case wrongly decided–indeed, I must think that the case was none of the Court’s business.  But “structural issue” is Balkin’s phrase, not mine, and it is telling in its vagueness.  Gibbons was right for the Court to decide, and rightly decided.  The Constitution tells us different things about the interbranch relations in the separation of powers, on the one hand, and the federal-state relationship on the other.
  • I’m “not James Madison.”  I’m “Felix Frankfurter with an attitude.”  I love that.  I’ll just say that everything I know about how to understand the Constitution, I learned from John Marshall, whose jurisprudence Frankfurter never adequately grasped, being much too impressed with Oliver Wendell Holmes, Jr.
  • “Matt agrees with me that a conscientious legislator shouldn’t vote for laws that are beyond federal power.”  Yes, I do.  But then Balkin writes, “then given his views about the original understanding, presumably Matt believes that the Civil Rights Act and, indeed, large parts of the edifice of post-New Deal regulation are unconstitutional.”  There is nothing in anything I have ever said or written that so much as implies either of these things, so on this point Balkin is simply off on a toot of his own.  For the record, I think the Civil Rights Act of 1875 was unconstitutionally struck down by the Supreme Court in 1883.  As for the “edifice of post-New Deal regulation,” I wouldn’t venture an opinion on it in general, only in particulars.
  • From that point on, I agree and disagree with Balkin here and there, but I disagree with almost everything imputed to the “Matt” of his imagination.  The misunderstanding is so complete I don’t where I would begin, or stop if I began.

Balkin pretty much confesses to the result orientation I have mentioned previously.  “The great advantage of my model of originalism is that it can give an account of why our current structures of law– not just Roe v. Wade, about which Matt seems particularly concerned– but the Civil Rights Revolution, the New Deal, and the most significant achievements of the 20th century, are consistent with our constitutional traditions.”  Of course it is Balkin who is “particularly concerned” with Roe v. Wade, having spent scores of footnoted pages attempting to justify it.  No, I have that backwards.  He attempted to justify originalism by reference to abortion rights, and he succeeded only in destroying everything about the edifice of originalism except the sign that hung on the building, which he picked up from the rubble and slapped on the construct hitherto known as the “living Constitution.” 

“Our constitutional traditions” have nothing to do with Balkin’s project.  I’m afraid “our law school traditions” would be more accurate.  When he says “we should see judicial interpretation as a special case of the citizen’s perspective,” he either does not see, or wants his readers not to see, that this “special case” is all about judges telling citizens they can take their “perspective” and go soak their heads. 

If this has struck any readers as written rather too sharply in response to the admirably mild-mannered Jack Balkin, I plead in extenuation a loss of patience with a scholar for whom history is all about travelling to a destination with judges at the wheel, not about an inheritance of self-government. 

I end where I began some days ago.  Any “originalism” that concludes in favor of judicially conjured abortion rights is neither originalism nor constitutionalism.  I say that not because I am anti-abortion, although I am.  I say it because I have too much respect for the Constitution to say otherwise.

* I trust I will be forgiven for referring to my interlocutor by his last name rather than his first, since we have never met.  I would not have it assumed that I am offended by his more familiar way of referring to me.


Subscribe to National Review