Bench Memos

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Balkin on Abortion and Original Meaning—Part 3


I turn now to Balkin’s argument that the original meaning of the Fourteenth Amendment’s Equal Protection Clause is to prohibit class legislation, caste legislation, subordinating legislation, arbitrary and unreasonable distinctions, and special or partial laws.  I will pass over the question whether Balkin has properly determined this original meaning, and I will instead assume arguendo that he has done so.  The questions I would like to pose here are:  What sort of meaning is that?  How can principles so vague and indeterminate convey any generalized meaning? 


Balkin, I suspect, might wonder whether I am conflating what he calls the two different questions of fidelity (“what the Constitution means and how to be faithful to it”) and of institutional responsibility (“how a person in a particular institutional setting—like an unelected judge with life tenure—should interpret the Constitution and implement it through doctrinal constructions and applications”).  I accept his distinction—and his related distinction between originalism and judicial restraint.  But it 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.


To state my point somewhat differently:  Balkin sees in the Equal Protection Clause “abstract principles and vague standards that would delegate most issues to the future.”  But issues may be left to future generations in two very different ways.  One way—the way Balkin posits—is that it is up to each new generation to determine the constitutionally compelled application of these abstract principles and vague standards.  A second way would be to read the Equal Protection Clause, insofar as it is vague and indeterminate, as delegating (or, more precisely, continuing to reserve) to the political processes the policy decision to select among the various constitutionally permissible applications—and to revise those selections over time. 


I must also note that Balkin’s distinction between the questions of fidelity and of institutional responsibility appears, in his hands, to become an empty one.  In particular, there is no indication that principles of judicial restraint meaningfully supplement what Balkin calls his “text and principle” originalism.  His “Abortion and Original Meaning” article ends with a lengthy section on “how courts should enforce the [supposed constitutional] right to abortion,” and there is nothing modest about the “discourse shaping” approach that he would have courts play.  Further, in “Original Meaning and Constitutional Redemption,” Balkin states that his approach makes Brown v. Board of Education “a supremely easy case” that “takes about two paragraphs to explain.”  No doubt.  Ditto, evidently, for Romer v. Evans and Lawrence v. Texas, as this is the entirety of Balkin’s explanation why the laws at issue in those cases are unconstitutional:  “In my view both laws would violate the principle against class and caste legislation.”  To be sure, if all a judge need do is attach one of various malleable labels—class legislation, or caste legislation, or subordinating legislation, or arbitrary and unreasonable, or special or partial—to legislation the judge disfavors, the judicial task is quite easy.  And representative government operates only at the sufferance of judges.

Tags: Whelan


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