Bench Memos

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This Week in Liberal Judicial Activism—Week of August 27


Aug. 30     1971—By a vote of 6 to 1, the California supreme court rules in Serrano v. Priest that California’s “public school financing system, with its substantial dependence on local property taxes and resultant wide disparities in school revenue, violates the equal protection clause of the Fourteenth Amendment.”  Specifically, “the right to an education in our public schools is a fundamental interest which cannot be conditioned on wealth,” and the state financing system “invidiously discriminates against the poor because it makes the quality of a child’s education a function of the wealth of his parents and neighbors.” 

Two years later (in San Antonio Independent School District v. Rodriguez), the U.S. Supreme Court, by a vote of 5 to 4, rejects Serrano’s analysis, as it  rules that Texas’s similar system of financing public school education does not violate equal-protection guarantees.  Citing Serrano, Justice Powell’s majority opinion adds this prescient “cautionary postscript”:

“[T]here is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education.… The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education.…   Additionally, several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers, a result that would exacerbate rather than ameliorate existing conditions in those areas.”

Ah, the unintended consequences of liberal judicial activism:  According to experts, the Serrano decision “overlooked the fact that 75% of poor children lived in high spending districts,” and it thus “actually led to lower school spending for most poor children” and to “equalized mediocrity.”  Further, Serrano and its follow-on rulings are credited with triggering the property-tax revolt that culminated in California’s Proposition 13—“After all, the logic goes, if increased property taxes don’t help our schools, why should we be for increased property taxes”—and helped lead to Ronald Reagan’s election as president in 1980. 


Sept. 2       2003—In Summerlin v. Stewart, the Ninth Circuit addresses whether the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, applies retroactively to cases already final on direct review.  The limited en banc panel of eleven judges (a creature unique to the Ninth Circuit), consisting in this case of ten Carter/Clinton appointees and one Reagan appointee, divides 8 to 3 in favor of a ruling that Ring applies retroactively.  In her dissent, Judge Rawlinson observes that the majority “wanders afield”—and contradicts a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule.  She also disputes the majority’s alternative holding that Ring announced a watershed rule of criminal procedure.

On review, the Supreme Court (in Schriro v. Summerlin) reverses the Ninth Circuit.  Not a single justice expresses agreement with the Ninth Circuit’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion takes four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of the Ninth Circuit’s ruling.  By a vote of 5 to 4, the Court rules that Ring did not announce a watershed rule of criminal procedure.


For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

National Security and the Law


Must reading for today: first, former judge Michael Mukasey in the Wall Street Journal, on how “[t]he history of [Jose] Padilla’s case helps illustrate in miniature the inadequacy of the current approach to terrorism prosecutions.”

Second, Columbia University’s Philip Bobbitt in the New York Times, handily refuting critics of Congress’s recent reform of surveillance and intelligence-gathering.


Aron-neous Assault on Judge Southwick—Part 3


What’s left of Nan Aron’s charges?  She contends that Judge Southwick has “voted against the interests of injured workers and consumers in divided decisions 89 percent of the time” and that he has “also voted overwhelmingly—54 of 59 times—against defendants alleging juror discrimination.”  Let’s set aside the fact that, if the three categories of deception are lies, damned lies, and statistics, we should be especially skeptical of statistics proffered by someone who, it seems, has made a career out of being a habitual liar.  What are these statistics supposed to show?  What are the platonic percentages?  When did Southwick actually get it wrong?


Flinging her usual epithets, Aron charges that Judge Southwick has shown “disrespect for law and lack of compassion for the powerless.”  Ah, yes, that’s why the ABA, no friend to Bush Administration nominees, unanimously gave Southwick its highest “well qualified” rating—after conducting its usual investigation, which includes an inquiry into whether the nominee has “freedom from bias and commitment to equal justice under the law.”  That’s why Senator Specter, in a July 25 floor statement, was able to provide countless illustrations of cases in which Southwick ruled for the powerless. 


Aron, of course, isn’t interested in equal justice under the law.  By “compassion for the powerless,” Aron means that judges should favor certain litigants and impose the Left’s agenda.  Her well-founded belief that Southwick will instead be the very model of a judge is why she and the rest of the Left are opposing him.

Tags: Whelan

Aron-neous Assault on Judge Southwick—Part 2


Let’s look now at the two cases that Nan Aron features—again, cases that People for the American Way didn’t even see fit to mention in its 7- page letter opposing the Southwick nomination. 


First is Goode v. Synergy Corp.  The legal issue in that case was whether the trial court abused its discretion in denying plaintiffs’ motion for a new trial in a wrongful-death case.  The grant of a new trial based on newly discovered evidence is an extraordinary remedy, and the trial court is obviously in the best position to judge whether such a motion should be granted.  The issue that divided the majority opinion from the dissent (which Southwick joined) was the question whether the plaintiffs had shown that they had exercised “due diligence” before and during trial in seeking (unsuccessfully) to uncover the newly discovered evidence.  The majority found that interrogatories submitted by the plaintiffs to the defendant adequately showed their due diligence.  The dissent maintained that, given the centrality of the particular factual issue, a more thorough investigation was needed to establish due diligence.  This highly factbound question is the stuff of which opposition to a nominee is made?


Aron’s second case—Cannon v. Mid-South X-Ray Co.—is even feebler.  The legal question there was when the limitations period for a latent disease begins to run.  In his dissent, Judge Southwick stated that all agreed that the relevant statute (section 49(2)) specified that the cause of action for “latent injury or disease” accrues (and the limitations period begins to run) when “the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.”  Southwick contrasted this injury-discovery trigger with the statute of limitations for medical-malpractice claims, which begins to run only once a plaintiff knows both of his injury and of its cause.  Southwick specifically quoted Mississippi supreme court precedent that established that knowledge of the cause of the injury and knowledge of the causative relationship between the injury and the injurious act are not relevant under section 49(2).  Because the majority in Cannon looked to the date of plaintiff’s knowledge of the cause of her injury to determine that the limitations period may not have run, Southwick dissented. 


On a question of state statutory law, I would often be reluctant to offer an opinion who is right.  But in this case Southwick clearly spells out the binding precedent he is applying, and the judges in the majority, far from offering any answer to his argument, mistakenly (and nonsensically) claim that he is applying the statute of limitations for medical-malpractice claims (rather than section 49(2)).  Thus, a four-corners review of the case strongly indicates that Southwick’s opinion correctly applies applicable law.

Tags: Whelan

Aron-neous Assault on Judge Southwick—Part 1


In an op-ed in today’s Washington Post, Nan Aron of the Alliance for Justice continues the Left’s scurrilous attack on the nomination of Judge Leslie Southwick to a seat on the U.S. Court of Appeals for the Fifth Circuit.  I’ll turn soon to the two cases that Aron leads with—cases that Alliance for Justice’s cohort in mugging, People for the American Way, didn’t even see fit to mention in its 7- page letter opposing the Southwick nomination.  But let me start with Aron’s wildly mistaken descriptions of the two cases that have been at the forefront of the assault on Southwick.  (I’m going over ground that I’ve trodden before, but that’s made necessary by the fact that Aron’s modus operandi appears to be that a lie repeated often enough becomes respectable.)


First is the Richmond case, in which Judge Southwick joined an opinion that affirmed an administrative ruling that use of an ugly racial slur by a public employee did not justify the sanction of termination of her employment.  The narrow legal question that the majority opinion addressed was whether “there was evidence in the record to support” the administrative agency’s conclusion that “this one use of a racial epithet, when viewed in the context in which it was said, did not constitute sufficient basis to terminate an employee whose service, over a number of years, was shown to have been satisfactory in all other respects.”  Applying this deferential standard of review, Judge Southwick’s court upheld the administrative ruling.  At the same time, the opinion he joined condemned the slur, as it expressly stated that the “unwarranted use by a state employee of any inflammatory or derogatory term when referring to or directly addressing a co-worker is an action that cannot be justified by any argument.”  On appeal, the Mississippi supreme court majority agreed with Southwick’s court that termination was not an appropriate remedy:  “Under the particular circumstances of this case, Bonnie Richmond’s use of a racial slur on a single occasion does not rise to level of creating a hostile work environment, and therefore does not warrant dismissal of her from employment with DHS.”  (The Mississippi supreme court somewhat altered the judgment that Southwick’s court had reached, as it remanded the case to the administrative agency “for the imposition of a lesser penalty, or to make detailed findings on the record why no penalty should be imposed.”)


Here’s Aron’s summary of the Richmond case:  “Southwick affirmed the view that referring to an African American co-worker as a ‘good ole [expletive]’ was akin to using the term ‘teacher’s pet.’”  As my description above indicates, that summary utterly obscures the deferential standard of review that Southwick’s court was obligated to extend to the decision of the administrative agency.  Nothing in the opinion Southwick joined equates the racial epithet with the term “teacher’s pet.”  Indeed, that opinion expressly condemned the racial slur in terms that plainly would not apply to the phrase “teacher’s pet.”


Second is a child-custody ruling, which I discuss more fully here.  Aron claims that Judge Southwick “went out of his way to express the view that sexual orientation alone was reason enough to deny parents custody of their children.”  (Emphasis added.)  On the contrary:  The opinion that Southwick joined—which was in the context of a custody battle between the biological mother and the biological father, not (as Aron’s phrasing might suggest) a case in which the state was taking a child away from both parents—expressly repudiated the position that Aron assigns to him:  “The dissent points out that under Mississippi law sexual relations of an unmarried custodial parent cannot be the sole factor in determination of custody [between dueling parents] absent a finding that the relationship caused harm to the child.  Quite so.”  (Emphasis added; citations omitted.)  “But,” the opinion continued, “just as clearly and frequently the supreme court has stated that it can be one factor.”  (Emphasis added.)  In short, the opinion that Southwick joined faithfully applied governing precedent of a superior court.  Aron may dislike that precedent, but she cannot fairly fault Southwick (much less label him “extreme”) for abiding by it.  That’s the obligation of a lower-court judge.

Tags: Whelan


This Week in Liberal Judicial Activism—Week of August 20


Aug. 23     2006—The New York Times reports that Michigan federal district judge Anna Diggs Taylor, who issued a wild ruling the previous week declaring that the National Security Agency’s Terrorist Surveillance Program is unconstitutional (see This Week for August 17, 2006), is a trustee and officer of a group that has given at least $125,000 to the Michigan ACLU, the plaintiff in the NSA case.  Just as the supposed legal ethicists on the Left recklessly fling flimsy ethics charges against judicial conservatives, they race to dismiss more substantial charges against liberal judicial activists.

Consider, for example, law professor Stephen Gillers’s breezy assertion that “the fact that [Judge Taylor] sits on the board of a group that gives money to the plaintiff for an otherwise unrelated endeavor would not in my mind raise reasonable questions about her partiality on the issue of warrantless wiretapping.”  This is the same Gillers who, in the midst of Chief Justice Roberts’s confirmation process, offered the badly flawed opinion that Roberts, as a D.C. Circuit judge, should have recused himself from the Hamdan case because “the public can never know” how the prospect of a Supreme Court nomination might have affected his thinking.  The same Gillers who recklessly opined that Justice Scalia’s participation in a legal seminar sponsored by a group that does not litigate raised serious ethical concerns.  The same Gillers who, in advice that other ethics gurus questioned, advised Justice Breyer that Breyer could take part in a case presenting the question whether the sentencing guidelines are constitutional, notwithstanding Breyer’s own extensive involvement in creating the guidelines.  Anyone notice a pattern?


Aug. 24     1995—The citizen-suit provision of the Endangered Species Act authorizes “any person” to sue for violations of the ESA.  Demonstrating why liberal judicial activists should be an endangered species, Ninth Circuit judge Stephen Reinhardt, joined by two other Jimmy Carter appointees (Harry Pregerson and William C. Canby, Jr.), rules in Bennett v. Plenert that the so-called “zone of interests test” that courts have developed (beyond Article III’s constitutional requirements) as a prudential limitation on standing overrides the broad language of the citizen-suit provision.  Therefore, the court concludes, “plaintiffs who assert no interest in preserving endangered species”—in this case, ranch operators and irrigation districts who alleged that they would be harmed by reservoir levels designed to protect two species of sucker fish—cannot challenge violations of the ESA.

On review by the Supreme Court, not even the Clinton Administration will defend the Ninth Circuit’s reasoning.  In a unanimous opinion (in Bennett v. Spear), Justice Scalia explains that the zone-of-interests test is a judicially self-imposed limit on standing that Congress is free to negate—and that Congress did so through the ESA’s citizen-suit provision.

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

Cohen’s Curious Omission


NYT editorial writer Adam Cohen, drinking deep of the Left’s Kool-Aid, thinks Alberto Gonzales has committed impeachable offenses.  He doesn’t really want Gonzales tried–for the attorney general would certainly be acquitted, and for the best of reasons–he just wants him pressured into resigning.

Citing the example of Ulysses S. Grant’s secretary of war William Belknap, impeached on corruption charges and tried in the Senate despite his resignation, Cohen writes this very curious sentence: “Impeachment is usually thought of as limited to presidents, but the Constitution not only allows the impeachment of Cabinet members, in Belknap’s case, it was actually done.”

“[U]sually thought of as limited to presidents”?  Who thinks so?  Perhaps some citizens know only of the cases of Bill Clinton, the nearly impeached Richard Nixon, and (maybe) the barely acquitted Andrew Johnson.  But Cohen might not have left his readers’ education so incomplete if he had pointed out that while Belknap’s is the only case of an executive official other than the president being impeached, there have been far more impeachments of judges than of holders of any other office.  The House has impeached thirteen judges (including one Supreme Court justice); two resigned their offices and were not tried, while of the eleven who were tried, seven were convicted and removed from office.  You could look it up.

Belknap was acquitted, by the way–thanks to his resignation, and despite his fairly obvious guilt.  So far in history, three executive branch officials have been impeached and tried, all of them acquitted: Johnson, Belknap, and Clinton.  Also a senator, in a kind of “oops, never mind” case in which the senators figured out that the power didn’t really apply to one of their own, or to House members.

It’s just odd, isn’t it, that Cohen would entirely omit the fact that the principal use of the impeachment power has been against the corruptions of the judiciary?

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.

“Qualified to Serve”


That’s the title of the Washington Post’s editorial this morning on Fifth Circuit nominee Leslie Southwick.

Reply to Balkin on Abortion and Original Meaning—Part 2


Numbering my points serially from my previous post, here are my additional thoughts in reply to Jack Balkin:


4.  One of Jack’s primary criticisms of conventional originalism is that it supposedly can’t justify important precedents.  Jack kindly asks me for my view whether various precedents are correct under the originalist approach that I am advocating.  My short answer is that I don’t know, as I have not had occasion to study the relevant history with sufficient care to arrive at a conclusion.  If there are important precedents that originalism can’t justify, I would submit that is because the Constitution, for all its greatness, is not, and never has been, a perfect document. 


5.  In criticizing living constitutionalism, I pointed out that “insofar as it is used for its primary modern mission—the creation of new rights (rather than, say, the conferral on Congress of greater powers)—living constitutionalism entrenches the current generation’s policy preferences in Supreme Court decisionmaking in a manner that deprives future generations of the very adaptability that Balkin and other living constitutionalists say they favor.”  Jack takes me up on the negative implication of my proposition—namely, that living constitutionalism may be (or, at least, may have been) necessary to ensure that Congress has the broad powers we’ve all grown accustomed to. 


A few (admittedly tentative) thoughts in reply:


a.  First is the question of the original meaning of, say, the Commerce Clause and section 5 of the Fourteenth Amendment.  On the Commerce Clause:  Jack argues in “Original Meaning and Constitutional Redemption” that the word “commerce” in 1791 had a broad meaning that extended to non-economic activities.  His argument, as I read it, relies on the same materials that a conservative originalist would invoke.  If he is right (and I am in no position to dispute him on the matter), the Commerce Clause power is quite broad and would appear to justify the bulk of Congress’s modern exercises of that power, including the enactment of prohibitions against conduct that has deleterious effects on interstate activities.


As for section 5 of the Fourteenth Amendment:  I must acknowledge that I’m skeptical of the limiting constructions that the Court has placed on Congress’s power under that section.  And I suspect that Jack is too. 


b.  Next comes the question of judicial restraint.  Again, that question is distinct from originalism, but it can’t be ignored here.  Even if some of the exercises of Congress’s powers were dubious, it does not follow that the Court should invalidate them.  When originalist methodology does not yield a sufficiently clear answer to a constitutional question, judges have no authority to override democratic enactments.  Reasonable people can dispute how to define the requisite level of clarity, and it may even be that the level will vary depending on context.  But a mere best guess as to constitutional meaning should not be a judge’s basis for trumping the majoritarian process. 


c.  As to existing precedents, stare decisis considerations provide considerable protection.


d.  Whatever the case, pragmatic or otherwise, that could be made for a living constitutionalist expansion of Congress’s powers, that case has no bearing on the topic of Jack’s articles—the creation of a supposed constitutional right to abortion—or on other instances of rights-invention.


6.  Another criticism that Jack offers of conventional originalists—both in his articles and in his response to me—is that originalists have not elaborated a coherent theory of stare decisis that would explain the decision to acquiesce in some non-originalist precedents and to overturn others.  As a result, he charges, originalism has a “play in the joints” that “allows [it] to track particular political agendas and allows judges to impose their political ideology on the law—the very thing that the methodology purports to avoid.” 


This is not a complete indictment of conventional originalism—as Justice Scalia writes in A Matter of Interpretation, the primary impact of originalism “is not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones”—but it is a serious charge.  It is not enough to point out that Jack’s “text and principle” theory is vulnerable to the same criticism. 


But how accurate is the charge?  Jack asks (in part):


Why go on and on about Lawrence v. Texas if you are going to extend the commercial speech cases, for example? Why make such a fuss about Griswold and Roe if you are going to keep Loving v. Virginia and Adarand?


I don’t think that originalists’ selectivity is as great as Jack suggests.  Of the cases he mentions, the only one that I think most originalists would agree requires reversal is Roe.  And the reason for that—as Jack understands when he writes (in “Original Meaning and Constitutional Redemption”) that “I know that many of my fellow citizens [believe that] the continued enforcement of abortion rights makes a mockery of the Constitution”—is that Roe stands with Dred Scott as the only instances in American history in which the Supreme Court has denied American citizens the authority to protect the basic rights of an entire class of human beings.  That’s why it has disrupted American politics for more than three decades.


In short, I don’t dispute that there is room for originalists to continue to elaborate a coherent doctrine of stare decisis, but I don’t think the state of play is nearly as dire as Jack suggests.

Tags: Whelan

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

Originalism Wars: A Late Round-Up


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!

The ABA Connects the Dots


I’m pleased to see that the ABA has finally found its proper niche.  It’s just published the U.S. Supreme Court Coloring and Activity Book, which, it tells us, is somehow “[s]uitable for all ages,” has “matching, word-search, and connect-the-dots games,” and even includes crayons.  (HT:  How Appealing.)

Tags: Whelan

Re: Addendum


Like Roger Pilon, I will keep this final rejoinder short, since by now Memos readers have had our respective positions aired out enough to choose between them for themselves.  I have just two points to make.

First, it is Pilon who misreads Webster.  When I said that it would satisfy Webster’s notion of due process if “legislatures . . . pass laws that honored the procedural requirements of due process,” I didn’t intend for it to be forgotten that the first requirement is that it must be a law, not a decree.  When Webster refers to “acts directly transferring one man’s estate to another,” he is describing a decree, not a law.  Pilon seems to think that this principle is violated every day by the modern administrative state–with its transfer payments, I suppose.  Think what you will of such laws, they are still laws, and no violation of due process.  They are prospective, generally applicable, and administered by familiar procedural mechanisms; they are not retrospective, particularly confiscatory, and accomplished merely by the enactment itself.

Second, Pilon claims that “the tragedy of so much contemporary conservative constitutionalism is that it has taken on the mantle of legal positivism, abandoning its and the nation’s roots in the theory of natural rights, which alone gives the Constitution its legitimacy.”  This would be an interesting charge if it had anything to do with the present argument.  It does not.  It does not follow from the fact that one regards the due process clause as procedural in character, and the Ninth Amendment as unenforceable by judges, that one is a legal positivist, or forgetful of the theory of natural rights.  Easily half of my first book, a decade ago, was devoted to showing that the natural rights theory that undergirds American constitutionalism is actually incompatible with the conception of the judicial function that Roger Pilon evidently embraces.



I shall limit myself to one response to Matthew Franck’s lengthy rejoinder to my post earlier today:

In criticizing my understanding of “substantive due process,” Franck claims that the only thing remotely “substantive” about the due process clause is that it requires government

to rule by law and not by decree. The latter would be the “unbridled will” of those with power, for it would mean the government takes life or liberty or property lawlessly—without promulgating a statute of general application duly notifying us of the rules to which we must conform, and instead simply picking persons or classes of persons to suffer penalties because of who they are, not what they have done under a law. Daniel Webster put it this way in an argument to the Supreme Court:

The meaning [of due process] is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land.

If this was substantive due process,” it was a “substantive” guarantee only that legislatures would pass laws that honored the procedural requirements of due process. What Pilon prefers is something that made its first Supreme Court appearance in the Dred Scott case—the assertion that due process limits the range of policy choices a legislature can make, even if it satisfies all of Webster’s requirements of a law of general application, fairly enforced.

Set aside the Dred Scott matter—we know what’s going on there—Franck misreads Webster. If Webster meant to include under “the general rules which govern society” only those legislative enactments “that honored the procedural requirements of due process [notice, a hearing, etc.],” then how could he have included a prohibition against “directly transferring one man’s estate to another” (which is what government is mostly about today!).

Perhaps “directly” saves Franck, but my point should be clear: Such a prohibition is substantive, not procedural. Webster is saying—in fact he does say—that “Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land.” Were it otherwise, were “law” not substantive, then it would be no different from or better than “decree.” That it flows in a democracy from the will of the majority rather than the will of the king makes it no less decree. As we learn at least from Plato’s Euthyphro, will alone is no basis for right—or for “law” as it is used in the due process clause, read in its historical context. In my piece in the Wall Street Journal that began this exchange I noted that the tragedy of so much contemporary conservative constitutionalism is that it has taken on the mantle of legal positivism, abandoning its and the nation’s roots in the theory of natural rights, which alone gives the Constitution its legitimacy. It’s time for judges, along with the rest of us, to rediscover those roots.

Roger Pilon’s Due Process Follies


On NRO today, Roger Pilon responds to my criticism of his recent WSJ op-ed, in which he argued that the “right to life” under the due process clause should guarantee terminally ill patients access to experimental drugs that have proceeded only part of the way to FDA approval.

For starters, he doesn’t like my “tone,” which he describes as “more pugnacious than thoughtful.”  I like to think that I supply a judicious combination of thought and pugnacity for the enjoyment of Bench Memos readers.  We all have our off days, so Pilon may be right.  But readers can see for themselves that in his original piece Pilon characterized the opinion of Judge Thomas Griffith for the 8-judge majority of the full D.C. Circuit as being of “poor quality,” and then implicitly attributed the same opinion of Griffith’s reasoning to Judge Judith Rogers’ dissent–”’startling,’ said the dissent,” is how Pilon puts it, though you will find the word “startling” in Rogers’ opinion just twice (pp. 2 and 14 of her dissent found here), neither time sneering at the “poor quality” of Griffith’s opinion, as Pilon implies.  Who is it that has the “tone” problem?

Pilon’s history is a string of “just so” stories, I’m afraid.  He tells us that the Bill of Rights “reiterated the libertarian principles of the Declaration, especially through the Ninth and Tenth Amendments, thereby securing ratification by the states.”  Later this is modified slightly, with Pilon saying that “[b]efore [the founding generation] would ratify the document, after all, they insisted that a Bill of Rights be added.”  That’s a little better, but still a half-truth.  The Constitution was ratified by several states initially without much concern for the addition of a bill of rights.  None of those calling for such an addendum, in the later state conventions, succeeded in making it a condition of ratification itself.  Some of the states indicated the sorts of amendments they would prefer in their instruments of ratification, but those lists of proposed amendments were not binding in any way–and included ideas for structural change to the Constitution as well, which interested many of the Anti-Federalists more than stated rights guarantees.  When the first Congress met, most Anti-Federalist members were still more interested in such structural changes, and when James Madison proposed what became the bill of rights, they didn’t like it much.  Our “Madisonian” friend Roger Pilon might be interested to know that Madison had mixed feelings about the whole project himself.  He thought no bill of rights was necessary to “improve” the Constitiution, but thought it might be useful as a political device for unifying the country around a charter that had been very controversial during the ratification season.  (For insight into all the above, see Robert A. Goldwin’s 1997 book, From Parchment to Power.)

Pilon also claims that “the Civil War Amendments . . . completed the Constitution by incorporating at last the grand principles of the Declaration, providing federal remedies against state violations of our rights.”  Thanks to his characteristic way of conflating the Declaration of Independence with the Bill of Rights, it is difficult to know which of “our rights” Pilon thinks were secured by “federal remedies against state violations” by which of the “Civil War amendments.  Perhaps he means to claim that the Fourteenth Amendment, in some clause or clauses of its first section, “incorporat[ed]” the provisions of the first ten amendments, which originally protected us only against the federal government, so that now those older amendments applied as well in federal courts against state governments.  Readers should be aware that “incorporation” theory remains controversial among legal scholars.  My own view is that the more substantial scholarly weight lies against the claim of that theory.  Pilon is free to treat it as given, but not to insist that the rest of us do.

But these are asides.  We have a “Bill of Rights” (I use the quotations because this is not the language of the Constitution), however we got it, and its terms certainly apply to the federal government, as in the Abigail Alliance case.  The essential thing is the due process clause, and here we encounter a third just-so story.  On due process Pilon does no more than to cite Bernard Siegan “and many others” as having “shown” that “due-process clauses have been substantive at least since Magna Carta.”  Sorry, they may have argued this, but they have “shown” no such thing.  And Pilon follows it with a parade of horribles that, if I am right about due process, do not follow at all: “exposing one and all to the unbridled will of the king, the aristocracy, the democratic majority . . .”  Not so.  As I argued in a lecture on due process last fall (not in print but viewable from a link here), the only thing remotely “substantive” about due process from Magna Carta onward was that it required government to rule by law and not by decree.  The latter would be the “unbridled will” of those with power, for it would mean the government takes life or liberty or property lawlessly–without promulgating a statute of general application duly notifying us of the rules to which we must conform, and instead simply picking persons or classes of persons to suffer penalties because of who they are, not what they have done under a law.  Daniel Webster put it this way in an argument to the Supreme Court:

The meaning [of due process] is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society.  Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land.  If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land.

If this was “substantive due process,” it was a “substantive” guarantee only that legislatures would pass laws that honored the procedural requirements of due process.  What Pilon prefers is something that made its first Supreme Court appearance in the Dred Scott case–the assertion that due process limits the range of policy choices a legislature can make, even if it satisfies all of Webster’s requirements of a law of general application, fairly enforced.

Now to the Ninth Amendment, and Pilon’s fourth just-so story.  He claims that if the Ninth Amendment is held to contain (as I say) no judicially enforceable rights, it becomes “mere surplusage.”  But this begs the biggest question in constitutional law, namely, how much of the Constitution consists of judicially enforceable principles?  Three general answers are available: none of it (i.e., no judicial review at all), all of it (i.e., judicial review becomes judicial supremacy), or some parts and not others.  Few hold the first position (perhaps Lino Graglia); Pilon appears to hold the second; I hold the third.  If you do not believe the entire Constitution is available for courts to “enforce,” then you have to make an argument for why certain clauses are “in” and others are “out” where judicial review is concerned.  But it wouldn’t follow that judicially unenforceable provisions are consequently “surplusage.”  If I am wrong about Pilon’s view–if he is not a judicial supremacist but, like me, thinks some provisions and not others are to be enforced in courts of law–then it is incumbent on him to explain why and how a content-free statement of “rights retained by the people” is to be enforced authoritatively by judges as against the people’s own sense (democratically expressed) of what those rights are and are not.  If I am right about Pilon–if he is a judicial supremacist–then he is no “Madisonian.”

What did Madison think?  Pilon is fond of quoting Madison’s statement in the Congress that the courts will be an “impenetrable bulwark” in defense of the Bill of Rights.  Here’s a fuller version of that statement:

[I]ndependent tribunals of justice . . . will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.

Perhaps Pilon can tell us what “rights expressly stipulated for” are contained in the Ninth Amendment.  That which stipulates no express rights at all is hardly a source of business for courts of law.

Pilon also faults me for saying that, inasmuch as the Fifth Amendment’s “right to life” is only about those circumstances when government is bent on taking life directly itself, he and Judge Rogers are off on “extended non sequiturs” when they discuss the right of self-defense or the tort of interference with rescue.  “Logic 101″ is missing from my education, he claims, for I do not see that getting from “government may not take life without due process” to “government must grant ill people access to unapproved drugs” is a mere “deduction,” a “move from the general to the particular.”  Why, it’s just like saying that free speech includes flag burning!  Even if free speech did include flag burning (not so easy itself), the comparison would not be apt.  Flag burning is arguably a form of expression.  Denying people drugs not yet approved as safe and efficacious is not even arguably a form of execution at the hands of the state.  This is not a move from genus to species.  It is a move from one genus to another.

Finally, Pilon says I “give the game away” when I criticize the right to marry or to direct one’s children’s upbringing as “bad ideas.”  Under the right circumstances, marrying and raising children are assuredly good things.  As constitutional rights, I’m not even sure these are ideas, good or bad.  Do I disapprove of Loving v. Virginia or Pierce v. Society of Sisters?  Well, Loving was an equal protection case, so let’s not change the subject.  Pierce was indeed wrongly decided, a classic instance of the due process clause being dragooned into service for which it is not fitted.  That doesn’t imply anything about whether I approve of the law struck down in Pierce

Maybe, as in Pierce, an injustice has been inflicted on a weaker party in the political process.  When the Constitution provides no judicial remedy–and many, many times it doesn’t–the hard truth of the matter is that you just have to try again, in the same political process.

Pilon never responds at all to this passage in my original post:

The Abigail Alliance wanted the court to decide that when a new experimental drug has passed “Phase I” of FDA testing and been found to meet a bare threshold of safety in human subjects sufficient to proceed to a “Phase II” of highly controlled clinical trials to establish its efficacy, the FDA is required by the Constitution (under rules the court would force the agency to promulgate) to release the drug “under some circumstances” to certain persons afflicted with conditions the drug might ameliorate.

To describe this “constitutional right” precisely, as above, is to refute its existence.

Now who’s given the game away?

Balkin on Abortion and Original Meaning—Part 4


As its title suggests, Balkin’s ““Original Meaning and Constitutional Redemption” is in various places suffused with religious rhetoric.  Balkin presents his interpretive theory of “text and principle” as a “theory of redemptive constitutionalism” that addresses “the question of our faith in the constitutional system, which is also … a faith in its redemption through history.”  We must have “faith in the redeemability of the Constitution over time,” he tells one advocate of living constitutionalism.  In rather mystical language, Balkin presents the Constitution not just as “basic law” and “higher law” but as “our law”: 


“The Constitution is our law when we feel that it reflects our values sufficiently well that we can identify with it as ours; or, because we feel [we] have a say in what the Constitution means, we have faith that it could and will come to reflect our values better over time….  [T]he idea of constitution as our law … requires an identification between ourselves, those who lived in the past, and those who will live in the future.  And it requires faith that the Constitution is either good enough as it is to deserve our respect or that it eventually will redeemed.”


I find this religion of living constitutionalism puzzling.  Why must the Constitution be reinterpreted by each generation to reflect that generation’s own values?  Why isn’t it enough that the Constitution leaves broad play to each generation to enact its own values through the political processes?


Balkin maintains that living constitutionalism (including his theory of text and principle, which he maintains is simultaneously originalist and living constitutionalist) is needed to ensure that the Constitution “is more than the dead hand of the past” and “is a continuing project that each generation takes on.”  But this claim is doubly defective.  First, it ignores the broad play that the Constitution, properly understood, gives to the democratic processes to adapt policies to new conditions.  There was never, for example, any “dead hand of the past” that would have prevented legislative enactment of permissive abortion laws.  Second, insofar as it is used for its primary modern mission—the creation of new rights (rather than, say, the conferral on Congress of greater powers)—living constitutionalism entrenches the current generation’s policy preferences in Supreme Court decisionmaking in a manner that deprives future generations of the very adaptability that Balkin and other living constitutionalists say they favor.  In short, the “living Constitution” approach isn’t needed to deliver what it promises and it in fact delivers the opposite.


But in another respect Balkin’s embrace of the religion of living constitutionalism may be less puzzling, even if his own conscious intentions are (as I will assume) entirely innocent.  Who, after all, are the self-anointed high priests of this religion whose stature and power increase as it spreads?  Activist judges and constitutional theorists like Balkin, as it happens.  Whose power concomitantly diminishes?  The very citizens whose constitutional “perspective” Balkin’s theory supposedly makes “primary”.

Tags: Whelan

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

Balkin on Abortion and Original Meaning—Part 2


The starting point of Balkin’s argument is his distinction between “original meaning” and “original expected application”.  But his shorthand phrases obscure the actual divide between his approach and the conservative originalists he criticizes.


Scalia’s jurisprudence is not limited to “original expected application.”  As Balkin recognizes in a footnote, with respect to “new phenomena and new technologies” Scalia agrees that originalist interpretation is (to use Balkin’s phrase) “not limited to those applications specifically intended or expected by the framers and adopters of the constitutional text.”  I am not aware of anything that Scalia has written—and I don’t think that Balkin has identified anything—that suggests that Scalia looks only to specific intentions or expectations as to phenomena and technologies that existed at the time of the adoption of the relevant constitutional text.  It is true that Scalia rejects (in a passage quoted by Balkin) the notion that “the very acts that were perfectly constitutional in 1791 … may be unconstitutional today.”  (Emphasis in original.)  But that rejection is not tantamount to looking only to specific intentions or expectations. 


In a different footnote (in his second article), Balkin quotes (as “particularly worthy of note”) Gary Lawson’s argument that originalism “is a hypothetical inquiry that asks how a fully informed public audience, knowing all there is to know about the Constitution and the surrounding world, would understand a particular provision.”  Scalia may well differ from Lawson on the weight that “[a]ctual historical understandings” should have in this hypothetical inquiry, but it seems to me that Scalia’s focus on the objective public meaning of constitutional text reflects this same hypothetical inquiry. 


The real divide between Balkin’s approach and Scalia’s is which “fully informed public audience” should be looked to.  For Balkin, “each generation”—or at least each generation’s professors of constitutional law—interprets constitutional text anew.  (Balkin’s approach would seem more deserving of the label “transformable meaning” than “original meaning”.)  For Scalia, the hypothetical public audience consists of those people living when the text was adopted.  If Balkin, beyond invoking misplaced clichés like “the dead hand of the past,” presents a real argument against Scalia on this point, I missed it. 


As law professors John O. McGinnis and Michael B. Rappaport put it in their own brief commentary


Balkin presents a false dichotomy—either embrace abstract principles whose meaning is almost infinitely malleable or confine the Constitution to the applications the Framers imagined.  We believe there is [a] middle way that is also a better way.  In our view, the Constitution’s original meaning is informed by, but not exhausted by, its original expected applications.  In particular, the expected applications can be strong evidence of the original meaning.  Moreover, reasonable people at the time of the Framing likely embraced such principles of interpretation.


Balkin responds at length to various of the points made by McGinnis and Rappaport, but I don’t think that he refutes their charge that he has presented a false dichotomy, nor do I believe that he has adequately explored the role that original expected applications should have in original-meaning jurisprudence.

Tags: Whelan

Balkin on Abortion and Original Meaning


I have read Yale law professor Jack Balkin’s 70-page paper titled “Abortion and Original Meaning” and his 103-page follow-on piece, “Original Meaning and Constitutional Redemption,” which largely responds to various academics who commented on the first piece.  (A sidenote:  In saying that I have read these pieces, I am certainly not claiming to have fully absorbed them.  That would be an audacious claim for any reader to make, as the pieces cover quite a lot of territory.  I also readily acknowledge that I read with greater care the parts of Balkin’s articles that I regard as bearing most directly on his central argument.)


I will use this post to summarize briefly, admittedly at a very high level, Balkin’s argument:


1.  “Original meaning” needs to be distinguished from “original expected application”.  A jurisprudence of original meaning is faithful to “the words of the text, understood in terms of their original meaning, and to the principles that underlie the text.”  Original-meaning interpretation is therefore “not limited to those applications specifically intended or expected by the framers and adopters of the constitutional text.”  Rather, the text of a constitutional provision is “judged by contemporary application of [the] concepts (and underlying principles) [that it embodies], not by how people living [at the time of ratification] would have applied those concepts and principles.”


Conservative originalists like Justice Scalia (Balkin’s argument goes) have instead adopted a jurisprudence of original expected application.  Justice Scalia “insists that the concepts and principles underlying [constitutional text] must be applied in the same way that they would have been applied when they were adopted.”  (Emphasis in original.)


2.  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. 


3.  Laws criminalizing abortion violate the original meaning of the Equal Protection Clause because they constitute class legislation and subordinating legislation.  They “impose special burdens on women not suffered by men.”  They “help maintain the unequal and subordinate status of women in society because they help commit women, against their will, to lives of domestic labor and economic dependency.”


As law professors John O. McGinnis and Michael B. Rappaport nicely put it in their brief critique of Balkin’s argument:  Balkin “undertakes what many previously would have thought a conjuror’s trick:  he attempts to locate the constitutional right to abortion, the poster child for imposition of the judiciary’s own idiosyncratic values, in the original meaning of the Constitution.…  [His] article has great strategic value [for opponents of conservative originalists]:  it attempts to appropriate for the living constitution philosophy the intellectual capital and public respectability that originalism has earned recently in the academy as well as the wider world.”


Like McGinnis and Rappaport, I believe that Balkin’s “conjuror’s trick” fails.  Supplementing Matt’s views (here, as modified here), I will offer some comments on Balkin’s core argument in subsequent posts.

Tags: Whelan


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