Academic duties have kept me busy all week, and so I have not yet responded to Jack Balkin’s last contribution, a week ago, to our exchange on originalism. Hardy souls with time and patience can see the stages of it by clicking here for my first post that started it, then here for Balkin, then here, here, and here for my further thoughts; then here for Balkin’s last note to me. Meanwhile our own Ed Whelan weighed in with a four-part critique of Balkin (here, here, here, and here) to which Balkin has now responded.*
The heart of Balkin’s response to the two of us is to say (to me) that “originalism and judicial restraint are [not] the same thing,” or (as he says to Ed), “Originalism is a theory of fidelity in interpretation, not a theory of judicial review, and it is certainly not a one-size-fits-all method for ensuring judicial constraint.” This is true as far as it goes, but the distance it goes is very, very short. Originalism and judicial restraint are not the same thing. Judicial restraint is a conclusion from originalism, or a corollary of it. Balkin is right that originalism is a “theory of how people in general should interpret the Constitution.” But one thing that people in general, and judges in particular, need to ask themselves is, what is the original understanding of the purpose, function, and limits of the judicial power under Article III? Knowing that will lead, inexorably I think, to a restrained account of what judges may and may not do. Sometimes this restraint, grounded in original understanding, will result in rulings that leave intact laws and policies that no originalist should vote for if, say, he serves in Congress. That is not a mark of originalism’s failure, or of the Constitution’s. It is a mark of their success, in leaving large stretches of constitutional interpretation to the people themselves, and not to judges presuming to govern them.
Jurisdiction, standing, political questions—these things are critical threshold matters. The principle that some constitutional questions are political questions is particularly ill understood in the last four decades or so. That is, many people appear to believe that if an authentic constitutional question is raised, it is therefore not a political question, and is therefore fit for judges to answer authoritatively. But this is a serious error, which leads straight to judicial supremacy, and almost always to supremacy’s doppelganger, judicial activism. The idea that some constitutional questions are political questions means nothing unless it means that the political branches may get them wrong as well as right, without judicial intervention either way.
Jack Balkin slips into the error just mentioned, I think, when he wants to know “why [I think] the original meaning of the Commerce Clause imposes almost no constraints on federal legislation.” But I don’t think that. It is perfectly possible for Congress to exceed the proper extent of the federal commerce power—it’s even been known to happen! What I do think is that the limits on the uses of the commerce power are not to be enforced by judges, because such matters are political questions. Chief Justice John Marshall thought so too, saying in 1824 in the first commerce clause case that the “sole restraints” on the commerce power lie in the political processes, not in courts such as his own. This is because in itself, the commerce clause implicates nothing about judicially vindicable rights, and so is, first and last, a matter for legislative judgment.
Balkin is curious to know as well how I would view “sex equality law,” specifically asking whether I think Bradwell v. Illinois was rightly decided (he wrote “Bradley,” but I’m sure he meant Bradwell), an 1873 case in which the Court decided that it was no violation of equal protection for Illinois to deny women admission to the bar. This is a different kettle of fish, for here the constitutional principle in question is well within the judiciary’s purview. But for originalist reasons, I believe it was rightly decided. Need it be said that this declares nothing on my view of women’s equality?
This leads me to a final remark about Jack Balkin’s way of arguing. He evidently thinks it quite the riposte to me and Ed to inquire whether we approve of certain rulings, especially in recent history. He wants to know, for instance, whether Ed’s originalism can “explain the modern sex equality cases, or, for that matter, much of modern First Amendment jurisprudence, including the commercial speech cases.” Unless Ed tries to justify certain outcomes in these areas on originalist grounds, I don’t know why this is a question. It may be that many modern rulings would fall by the wayside if the correct version of originalism were rigorously applied. Why would this be a vice and not a virtue?
Surely it cannot be that the test of the adequacy of any version of originalism is whether it supports certain results we are predisposed to like on other grounds. Can it? I suspect again, as I suggested last week, that there is something results-driven about Balkin’s laying claim to the originalist mantle. I suspect, that is, that he is less interested in getting squared away with the Constitution than in getting the Constitution to square with Roe v. Wade.
* True gluttons for punishment can check out comments from the sidelines on all of this, as well as on my exchange with Roger Pilon this week, by going here to the Volokh Conspiracy and to the links found there. I haven’t even caught up with all this myself!