Bench Memos

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Reply to Balkin on Abortion and Original Meaning—Part 1


Jack Balkin has kindly responded to my posts (here, here, and here) critiquing his two articles that propose a theory of constitutional interpretation that (according to Jack) is simultaneously originalist and living constitutionalist and that recognizes a constitutional right to abortion (or, more precisely, two rights to abortion).  In light of their length, I will offer my thoughts in reply in two separate posts:


1.  Jack maintains that my major points are “ultimately about the same thing—he [that is, yours truly] wants to restrain judges and leave decisions to the political process.”  (Emphasis added.)  Jack says that I am “really worried about judicial restraint, not fidelity to original meaning.”  Not so.


As I stated in my original critique, I accept Jack’s distinction between originalism (a theory of constitutional interpretation) and judicial restraint (a set of additional principles about how judges should exercise their judicial role, whatever the proper method of constitutional interpretation).  It does not follow, however, that the principle of respect for the democratic processes needs to be confined to the question of judicial restraint.  As I put it:


[I]t seems to me that what Balkin calls the principle of democracy—the principle that the Constitution creates a system of representative government in which issues are presumptively left to the people to decide through their elected representatives—argues powerfully against anyone’s interpreting the Constitution to embody principles so amorphous and malleable as those Balkin discerns in the Equal Protection Clause.


In other words, I believe that a presumption (rebuttable, to be sure) against trumping of the political processes flows from Jack’s “principle of democracy” and is properly part of an originalist theory of constitutional interpretation. 


2.  Jack tries to turn a fatal vice of his “text and principle” theory—its near-infinite malleability—into the virtue of supposed consistency:  “I think that if you are going to be an originalist you should be consistent about it.”  Conservative originalists, Jack points out, make unprincipled accommodations of lots of precedents that they regard as non-originalist.  Jack’s own theory, by contrast, enables him to explain how these precedents can be defended on the grounds of his living-constitutionalist originalism.  But a theory that can explain anything really explains nothing. 


3.  In response to my concern that Jack’s label “original expected application” misstates the jurisprudence of Justice Scalia and other conservative originalists, Jack sets forth an account of conservatives’ originalism that strikes me as much more accurate.  He also offers the substitute label “hypothetical expectations originalism.”


I respectfully decline the offer.  Implicit in Jack’s offer is that he intends to continue to apply the label of “original meaning” to his own living constitutionalist theory of originalism and to maintain that conservative originalists can’t properly invoke that label.  I think that he has it backwards.  Once the originalism of Scalia and other conservatives is properly presented, I don’t discern any methodological arguments that Jack makes against it. 


Also, I would note that while Jack says that I read his understanding of Scalia’s methodology “far too narrowly,” his second article (“Original Meaning and Constitutional Redemption”) treats Scalia as an outlier among conservative originalists.  Specifically, Jack addresses the complaint of one commentator that “[o]nly Justice Scalia … seems to argue that fidelity to original meaning requires fidelity to original expectations”—which is equated with the “concrete expectations of the framers.”  (Emphasis added.)  Far from disabusing the commentator of his misconception, Jack explains why Scalia nonetheless deserves attention.

Tags: Whelan


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