Bench Memos

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I’m Still Laughing, Jack


A week ago I blogged here about a New Republic article arguing that liberals should adopt, for tactical reasons electorally and otherwise, the rhetoric of constitutional originalism–that, as I bluntly put it, Douglas T. Kendall and James E. Ryan were recommending that liberals “fak[e] being originalists.”  In the course of my brief post I remarked that it seemed sufficient evidence that the authors were not seriously urging a conversion to originalism among “living Constitution” liberals to observe that they used as a prominent example of “progressive originalism” the argument of Yale law prof Jack Balkin that originalism supports a right to abortion.

Now I learn that Professor Balkin, with becoming mildness, has urged me to “stop laughing [and] start talking,” since I did not see fit to “explain in detail what’s wrong with [his] arguments.”  Well, I won’t promise too much detail in a mere blog post, but Mr. Balkin deserves some response.

First, I should say that my charge of “faking originalism” in wholly cynical fashion, just to don the appearance that (rightly) has the people’s prejudices on its side, was directed at Kendall and Ryan.  Their TNR piece is bracingly candid about their preference for the arguments of the present Court’s most prominent non- or anti-originalist, Justice Stephen Breyer.  Declaring themselves to be “rooting for” Breyer, Kendall and Ryan only lament that he has lost too many of the arguments to Justice Antonin Scalia in the court of public opinion.  So they propose that the terms of debate should be changed.  Liberals should claim to be originalists too!  There is a “progressive originalism” out there, they say, whose “central theorist” is Balkin’s Yale colleague Akhil Amar.  But Balkin gets a special mention too, for what Kendall and Ryan clearly regard as his very useful paper “Abortion and Original Meaning.” 

Now it happens that I reviewed Amar’s last big book on the Constitution for NR, and found much to admire in it.  It is not, as Kendall and Ryan paraphrase someone as saying, the “best book written about the Constitution since The Federalist Papers”–not even close.  But from what I have seen of Amar’s output, he shows little interest in generating the kinds of particular doctrinal results that will comfort ideologues of any stripe where today’s jurisprudential debates are concerned.

Not so Jack Balkin.  He urges me to read two of his pieces (here and here), and I confess I stopped after the first one–the one cited by Kendall and Ryan.  Readers can plow through the 70 pages of “Abortion and Original Meaning” for themselves.  My own view is that there is an astonishing results orientation to his arguments in this piece–an intensity of focus on an evidently desired outcome that is the antithesis of originalism, or indeed of constitutional jurisprudence properly understood (but I repeat myself).  I do not question the “sincerity” of Balkin’s claim to be an originalist.  But the price of his professed commitment to originalism is a redefinition of the term that would make Humpty Dumpty proud.

Here is a statement central to Balkin’s theoretical position: “The choice between original meaning and living constitutionalism . . . is a false choice.”  Many pages of the paper are devoted to collapsing the distinction between them–to showing that “fidelity to original meaning and belief in a living Constitution are not at odds.”  Balkin contrasts his approach, which he terms “original meaning,” with the flawed originalism of Justice Scalia–and evidently nearly everyone else who normally claims the label–which Balkin calls “original expected application.”  (This is something of a straw man; a sounder form not so vulnerable to Balkin’s argument might be called “originally foreseeable application.”  The framers did not “expect” railroads, but would have foreseen the application of the federal commerce power to them had they learned of them.)  The framers of various constitutional principles, you see, had their own understanding of what the text means, but to the extent that their understanding conflicts with ours, we are free to reject their view and act on our own, saying “they expected it to apply in fashion A but we prefer fashion B.”  So far this is standard living Constitution stuff, straight out of the William Brennan playbook.  Balkin’s move–and in chess it would be akin to moving a rook diagonally–is to assert that when we substitute our view for the framers’, we are nonetheless displaying “fidelity to original meaning,” so long as some principle stated at a sufficiently high level of abstraction can be connected by even a single frayed thread to something the framers seem to have believed.

Several times Balkin tries to baptize this faux originalism in the waters of democratic legitimacy.  Here’s an example: “each generation of Americans can seek to persuade each other about how the text and its underlying principles should apply to their circumstances, their problems, and their grievances.”  Bully for the present generation.  What Balkin does not adequately supply (just a feeble thrust here and there) is a reason for believing that the justices of the Court possess an authoritative power to announce that they have been persuaded, and that what the Constitution did not mean yesterday, it now means today.  Balkin’s “theory that makes the citizen’s perspective primary” makes that perspective secondary just as soon as some citizens, however few, persuade five justices of the Supreme Court to recognize an “application” of the Constitution that no one ever dreamed would prevail the day before yesterday.

This is no caricature.  Balkin says that “we look to the original meaning of the words because if the meaning of the words changed over time, then the words will embrace different concepts than those who had the authority to create the text sought to refer to” (my italics.)  This is no more and no less than saying that the Constitution has no meaning of its own, independent of what we say about it.  A constitution with no reader-independent meaning certainly has no original meaning.  What then becomes of Balkin’s “original meaning” originalism?

On the specific issue of abortion, Balkin reasons as follows.  The framers of the Fourteenth Amendment (Balkin is flexible on which clause to place at the center of the debate) enacted the general principle that no class of persons was to be subordinated or treated as “second-class.”  Within a few pages we arrive here:

When the state uses women’s capacity to become pregnant as a lever to subordinate women, assign them a second class status in society, or deny them full and equal enjoyment of their rights of citizenship, it violates the equal citizenship principle.  It may not use pregnancy as a device to deny women equal citizenship or subordinate women precisely because only women can get pregnant.

This argument is many things–creative, for one.  But it is not originalism.  Asserting that it is originalism requires Balkin to say that even though the framers of the amendment had no notion of protecting the equality of women–indeed, they assumed they left intact the common law of coverture for married women–their “principle” of “nonsubordination” has a life of its own, which we are free to understand as applying to women as a general matter, and to pregnant women in particular.  And then we are free to demand that judges enact this new, improved understanding of a conveniently abstract “principle.”  (And this is not even to begin finding fault, which one may easily do, with Balkin’s thesis that abortion prohibitions “subordinate” women.)  When Balkin concludes the paper with several pages of proposed judicial legislation on abortion with a level of detail that would make Harry Blackmun blush, you know you have left any form of originalism about judicial power far behind.

Balkin seems to think there is no difference between the majority of a later generation coming to believe sexual discrimination is wrong and therefore legislating against it, and the minority of a later generation coming to believe it is not only wrong but should be held unconstitutional, and therefore persuading judges so to hold it.

Another of Balkin’s logical shortcuts is to assert that a) various “progressive” judicial rulings that cannot be squared with originalism in the usual way have achieved “public acceptance” in “[o]ur political tradition”; b) some originalists suffer a failure of nerve and cannot bring themselves to reject these precedents; c) therefore the approach usually travelling under the name “originalism” is fatally flawed.  This is like saying that because sin happens, the Ten Commandments are fatally flawed.  There’s something wrong there.  So too there is something wrong with Balkin’s argument that originalism as all the world understands it needs to be traded in for a new model that cannot be distinguished from living constitutionalism.



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