Bench Memos

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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

Re: Defending Justice Thomas


A Bench Memos reader writes to me to chide Ramesh for excessive magnanimity in his response below to Kendall and Ryan’s critique of Justice Thomas’s originalism.  Ramesh writes that “they score a real point” when they “point out that Thomas does not engage in any sort of originalist analysis” in his concurring opinion in the Parents Involved case on racial school assignments.  Concerned Reader points out that Thomas’s opinion was narrowly targeted as a response to Justice Breyer (Thomas’s third sentence: “I write separately to address several of the contentions in Justice Breyer’s dissent”), an objective that did not require him to offer any originalist analysis of the Fourteenth Amendment in relation to racial discrimination.

This is true, and worth pointing out.  And it may even suffice, for Thomas’s purposes, to argue the point based on the precedents all the justices profess to accept, beginning with Brown v. Board of Education.  But I am led to wonder whether Justice Thomas has ever offered any originalist analysis, with historical evidence from the framing and ratification of the amendment, for his view of this question.  I can’t think of any occasion when he has done so.  The nearest may be this passage from his concurrence in the Adarand Constructors case of 1995:

That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race.  As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”). . . . Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society.

The proposition that the government must be color-blind because the framers and ratifiers of the Fourteenth Amendment finally brought the Constitution into full concord with the equality principle of the Declaration of Independence is, potentially, a powerful argument.  I don’t know of a place where Justice Thomas develops this argument as a historical matter.  Does anyone else?  Am I forgetting something obvious?



Defending Justice Thomas


In Slate, Doug Kendall and Jim Ryan question whether Justice Thomas is really a principled originalist. They consider three cases.

In the “Bong Hits 4 Jesus” case, they claim that Justice Thomas found that “students simply do not have any right to free speech in school” on the basis of “conducting an imaginary séance with 18th- and 19th-century Framers and ratifiers.” (As an aside: Their description of the holding is slightly better than the descriptions found elsewhere, from both supporters and opponents of the decision. Thomas did not conclude that students have no First Amendment rights; he concluded that their rights do not bear on the policies of public schools. The state legislature, presumably, could not pass a law restricting what protests public-school students can attend on the weekends.)

Kendall and Ryan point out, correctly, that there can be a distinction between how ratifiers expect a legal provision they’re ratifying to apply and the meaning of the provision they actually ratified. But it is reasonable to assume that most of the time there will be no such distinction, and the claim that there is one will depend on a pretty solid argument—which they do not provide, and which is hard to imagine.

Second, they take up the racial-integration case. They point out that Thomas does not engage in any sort of originalist analysis. Here I think they score a real point, although they seem to assume that Thomas’s opinion therefore cannot be justified on originalist grounds. His decision, however, seems to me to be consistent with a straightforward reading of the Civil Rights Act.

Third, they go after Thomas on campaign-finance reform. They want to assail his decision in the recent FEC v. Wisconsin Right to Life case. But their chosen means is to point out that Chief Justice John Marshall thought that a corporation is an “artificial being,” unlike a person. This is, for a variety of reasons, insufficient. Marshall’s comment is entirely compatible with the proposition that the government may not choose to regulate the financing of certain advertisements more stringently than others depending on their political content.

Justice Thomas may not be perfect, and it may be that nobody applies originalism with perfect consistency. But Kendall and Ryan are trying to show that Thomas is merely a political hack without real principles, and they fall far short of the mark.

Tags: Ponnuru

This Week in Liberal Judicial Activism—Week of August 13


Aug. 15     1938—Stephen Gerald Breyer is born in San Francisco.  An expert on regulation and a professor at Harvard Law School, Breyer serves from 1979 to 1980 as chief counsel to Teddy Kennedy on the Senate Judiciary Committee.  His reward:  On November 13, 1980—after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the new Senate—Carter nominates Breyer to a newly created seat on the First Circuit.  His nomination is promptly confirmed.  In 1994 President Clinton appoints Breyer to replace retiring justice Harry A. Blackmun on the Supreme Court.  (See This Week for July 29, 1994.)  His jurisprudence has been aptly described by one perceptive critic as “judicial willfulness masquerading as judicial deference.” 


Aug. 16     1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent.  In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors’ abortions is unconstitutional under the Ninth Circuit’s 1991 ruling in Glick v. McKay.  Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review.  

In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, unanimously reverses the Ninth Circuit holding on the ground that it is “in direct conflict with our precedents.” 

1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule. 


Aug. 17     2006—In what one expert commentator aptly labels a “transparently political screed,” Michigan federal district judge (and Carter appointee) Anna Diggs Taylor rules that the National Security Agency’s Terrorist Surveillance Program is unconstitutional.  Displaying its usual regard for the truth, the next day the New York Times editorial page praises Taylor’s “careful, thoroughly grounded opinion.”  Alas for the paper’s poor editorialists, the following day the Times runs a front-page article—“Experts Fault Reasoning in Surveillance Decision”—that reports that “[e]ven legal experts who agreed with [Taylor’s] conclusion” say that her opinion “overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.”  (How’s that for “careful” and “thoroughly grounded”?)  Even Harvard law professor Laurence Tribe, in the course of self-indulgently criticizing Taylor’s critics for self-indulgent criticism, complains that her opinion “seems almost to have been written more to poke a finger in the President’s eye than to please the legal commentariat or even, alas, to impress an appellate panel.”  But Tribe concludes that “her bottom line is very likely to survive appellate review.”

In July 2007, the Sixth Circuit overturns Taylor’s ruling, as a divided panel rejects her threshold determination that the plaintiffs had standing to pursue their claims.


For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

Libertarianism vs. the Constitution


Friday’s Wall Street Journal ran a long op-ed by the Cato Institute’s Roger Pilon (reprinted here at Cato’s site), in which he criticicized an en banc ruling handed down by the D.C. Circuit last Tuesday.  In Abigail Alliance v. von Eschenbach (PDF here) the court ruled 8-2 that no constitutional “right to life” entitled people, however ill they may be, to have access to drugs that have not yet been approved as safe and effective by the FDA.  The plight of the terminally ill is a serious business, and a serious argument can be made as a matter of just public policy that perhaps the FDA’s strictures could be relaxed in some instances to permit such access.  But as Judge Thomas Griffith wrote for the Court, such questions “certainly . . . can be aired in the democratic branches.”   What is entirely another matter is constitutionalizing such issues in the judiciary, which entails “injecting the courts into unknown questions of science and medicine.” 

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.  Pilon in his article, and Judge Judith Rogers in her dissent (joined by Judge Douglas Ginsburg), prefer instead to talk in sonorous vagaries about the “fundamental” right to life.  The imprecision gets them no nearer to constitutional law.

The hinge of the case is the due process clause of the Fifth Amendment, which forbids the federal government to deprive anyone of life, liberty, or property without due process of law.  For the framers, what this clause meant was that no one could be executed, imprisoned or restrained, or deprived of any material possession without the deprivation proceeding on the basis of a duly promulgated statute, providing notice, a hearing, and an opportunity in a fair forum to challenge the deprivation.  That’s it.  What has come to be called “substantive due process”–the idea Pilon prefers, which enshrines affirmative limits on the kinds of public policy the government may adopt–is a later excrescence on the Constitution that has been employed to defend property in slaves, exploitation of labor, and most notably in our own time, a “right” to abortion. 

In the regulatory regime for the approval of drugs, the government is taking no one’s life.  It may be that people will die who would be saved if the FDA changed its policy.  It may also be that more people would die if the FDA made the changes advocated by the plaintiffs in this case.  But the “right to life” in the Fifth Amendment has only to do with those occasions when the government takes affirmative steps to end the life of a particular individual.  That’s just not happening here, and excursions into the common-law right of self-defense, or “the tort of intentional interference with rescue,” are simply extended non sequiturs. 

The Ninth Amendment, of which Pilon makes so much, is no help either, on its original understanding, which contemplated no judicial enforcement.  (Judge Rogers, in her one wise choice, at least avoids the embarrassment of relying on the Ninth in her argument.)  Inviting judges to enforce “rights retained by the people” that the Constitution never identifies is simply an invitation to government by judiciary.

Pilon has one thing right–sort of.  He writes disparagingly of “what passes today for ‘constitutional law.’”  But it is Pilon who has signed on with the expansive modern conception of the judicial function, with its creation of rights that it purports to dig up in our “history and traditions.”  He is right to lose patience with the kabuki dance of lower court judges trying to make sense of Supreme Court precedents on which rights are “fundamental” and which are not.  But he is wrong to think that the solution is to set judges even more at liberty to “infer” rights from the Constitution that they then enforce against the policymaking branches of government.

Haven’t we had enough of such creative inferences?  Judge Rogers complains in her dissent (in a passage Pilon quotes approvingly), that the rights “to marry, to fornicate, to have children, to control the education and upbringing of children, to perform varied sexual acts in private, and to control one’s own body [i.e., abortion] have all been deemed fundamental, but the right to try to save one’s life is left out in the cold despite its textual anchor in the right to life.”  Yes, six bad ideas justify a seventh!

Roger Pilon says he stands for limited government.  Somehow he has forgotten that the courts are part of the government.


“Just Another Liberal On a Leash”


That’s George Will’s assessment of Barack Obama, apropos of the stalled nomination of Leslie Southwick to the Fifth Circuit.

More on Greenhouse v. C-Span:


Above the Law has more on Linda Greenhouse’s refusal to allow her recent panel appearance broadcast on C-Span here .

Greenhouse vs. C-Span


Apparently NYT Supreme Court reporter Linda Greenhouse does not feel comfortable expressing her real opinions about the Court on camera.  (LvIP )

“Fervent Abortion Opponents”


Radley Balko of Reason offers an interesting and thoughtful discussion of abortion and federalism in his review of Anne Hendershott’s The Politics of Abortion.  That discussion is marred, unfortunately, by Balko’s strange reference to Chief Justice Roberts and Justice Alito as “fervent abortion opponents.” 


So far as I am aware, neither Roberts nor Alito has ever made a public comment on abortion policy.  As a court of appeals judge, Alito incurred (unfairly, I think, as I have explained) the wrath of some pro-lifers by ruling against the pro-life position in a case involving Medicaid funding of abortion.  He also voted (in the aftermath of Stenberg v. Carhart) to strike down New Jersey’s partial-birth abortion law.  (Roberts did not have any abortion cases during his short tenure on the D.C. Circuit.)  It is utterly farfetched (as I discussed in an essay on Roberts and abortion that equally applies to Alito) to think that Roberts or Alito would ever vote in favor of a ruling that the Constitution prohibits permissive abortion laws.  The most that can reasonably be hoped—and I will be deeply disappointed if it doesn’t happen when the right opportunity is presented—is that Roberts and Alito will recognize that the Constitution generally doesn’t speak to the matter of abortion.


What fervency!  If all the justices showed a similar absence of fervency in support of their (actual or supposed) policy preferences on abortion, Roe v. Wade would be overturned and abortion policy would be restored to the democratic processes.

Tags: Whelan

Adler’s Axiom


Commenting on my exchange with Jack Balkin, our own Jonathan Adler writes over at the Volokh Conspiracy: 

I would suggest that a reasonable threshold test of the seriousness of a given individual’s avowed theory of constitutional interpretation is whether the theory produces any results which the individual finds highly objectionable. If not, there may be reason to suspect that the theory is just a dressed up iteration of the individual’s policy preferences.

So we might coin Adler’s Axiom: he whose constitutional and political conclusions are always congruent has a suspect constitutional approach.  It’s a good test.  Not the last word, but a good threshold, as Jonathan says.

I hear tell that Jack Balkin thinks the Second Amendment protects a justiciable individual right to own firearms, good against states as well as the federal government–and that this runs contrary to his political preferences.  Interestingly enough, I take the opposing view on both questions.  I disagree with the newfangled Second Amendment scholarship that calls itself the “Standard Model,” and would, if I were a judge, dismiss all challenges to gun control statutes that base themselves on the Second Amendment.  But I oppose gun control, and have the most personal reasons for doing so.

This is an easy one, though, in some respects, and might cost each of us little.  Gun control is an issue (so far) firmly in the grip of legislatures, and neither Balkin nor I need worry very much about whether a court will adopt the view that we think is true but regrettable.  Well, maybe Balkin should worry more.  If the D.C. Circuit ruling stands, one of America’s worst gun-control laws will be eliminated.  I rather doubt that will happen.  For the Constitution’s sake, I hope I’m right.

For the record, here’s my short list, off the top of my head, of true-but-regrettable constitutional conclusions:

  • the Kelo ruling on eminent domain was rightly decided;
  • the Supreme Court has no rightful authority to gainsay campaign finance laws;
  • to the extent they are based on the Constitution, the Court’s rulings upholding affirmative action are unobjectionable;
  • I have yet to encounter a federal regulation of commerce that I thought the Court could properly overturn on nothing other than an interpretation of the commerce power;
  • the Court was wrong to invalidate President Truman’s seizure of the steel mills in 1952.

Oops.  That last one doesn’t belong on the list because I also think that Truman was smart to do it.

Readers will notice a pattern.  All my “gee, I’m stuck with that one” conclusions involve criticisms on my part of the Court improperly using its power to void the acts of other authorities.  It’s hard for me to think of instances of the improper disuse of the Court’s power.  (Oh wait, I have one . . . from 1934.)

ABA Do Right Thing


It’s not often that I have occasion to praise the ABA, so I take special pleasure in reporting that the ABA committee on judicial evaluations has apparently changed its name from the “Standing Committee on Federal Judiciary” (as used, for example, here) to the “Standing Committee on the Federal Judiciary” (emphasis added).  I never understood why the committee’s name had omitted the definite article.  Unfortunately, I am not privy to the task-force report and internal debate that led to this change.  Let’s hope that better grammar signals better performance in the future.  For now, at least, the change only slightly offsets, say, the committee chair’s acts of perjury.

Tags: Whelan

Unlawful Combatants? What Are Those?


Yesterday in the New York Times, Wesley Clark and Kal Raustiala had an op-ed of surpassing stupidity on the subject of how to treat our lawless enemies.  James Taranto of OpinionJournal gave them the drubbing they deserve.

A Correction


I haven’t gone to the “Balkinization” blog to see whether Jack Balkin has any rejoinder to my long post from last night (life is short, and I don’t spend much time there).  So what follows is prompted by my own rereading of what I wrote.  On one point I must withdraw a criticism because I may have misread a sentence in Balkin’s “Abortion and Original Meaning.”

He writes, in a sentence I partially quoted, “If these assumptions are correct [that the Constitution is binding law and that we want to know what its drafters were trying to achieve], then 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.”

I italicized the phrase “if the meaning of the words changed over time” and read it as representing Balkin’s argument that the Constitution has no durable meaning from the framing of its provisions to the present.  Looking again, I see that it does not represent that argument, but could mean virtually the opposite, and I apologize for my misunderstanding.  I still think that is Balkin’s argument, and I believe that Balkin only seems to but does not really contradict it here.

What Does George Will Think?


I’m not as inclined as Ramesh is to doubt that George Will endorses the arguments against presidential signing statements that he borrows from writer Charlie Savage, and which Ed Whelan so ably criticizes below.  It’s Will, not Dodd, who brings up Savage’s book (and Will who has clearly had an advance look at a tome not yet in stores), and he hasn’t a critical word to say about it.  (Nor about Dodd, for that matter–who somehow merits praise because his father was a lawyer at Nuremberg.)  Will’s final paragraph looks to me like an endorsement of the Savage thesis, actually.

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.


More Silliness on Presidential Signing Statements


I suppose that it is only fitting that a Newsweek column that describes Senator Chris Dodd as a “plausible president” who could fill the “role of a constitutionalist candidate” would contain this profoundly confused paragraph about the Bush administration’s use of presidential signing statements:


Contrary to the Constitution’s mandate that the president “shall take care that the laws be faithfully executed,” the current president, much more than any other, has issued “signing statements”—essentially, line-item vetoes, which are unconstitutional—to tell the executive branch that some provisions of bills he signs into law need not be enforced for constitutional or policy reasons. As Savage writes, “If a president has the power to instruct the government not to enforce laws that he alone has declared to be unconstitutional, then he could free himself from the need to obey laws that restrict his own actions.”


What is surprising, and deeply alarming, is that the author of this confusion is George F. Will.  Will adopts the ridiculous position taken one year ago by an ABA task force, a position that I have refuted at length (here, here, and in numerous Bench Memos posts) and that academics across the political spectrum have vigorously rejected.  As Laurence Tribe put it, the ABA task force “has missed the boat.”  Indeed, I remain unaware of a single academic not on the task force who agrees with the task force’s position.


Let’s look at some of the errors in Will’s paragraph:


1.  Signing statements in which the president states his conclusion that provisions of a bill he is signing are not constitutional are not contrary to the president’s “take Care” duty.  They are an exercise of that duty.  To restate part of my previous refutation of this assertion:


[T]he Constitution is first among the “Laws” that the president “shall take Care . . . be faithfully executed.” An unconstitutional provision of a legislative enactment is void, and it is the president’s duty not to enforce provisions that he regards as unconstitutional. (How he ought to form that judgment is a separate question.) It is therefore entirely proper for a president to sign a bill that has some provisions that are constitutional and others that aren’t, for the latter (and any other provisions inseverable from them) should be regarded as though they didn’t exist.


2.  Such signing statements are not the equivalent of line-item vetoes.  As I have put it:


This claim is both wrong and irrelevant. The claim is wrong because a provision of a bill that has been signed into law but that the president declines to enforce on constitutional grounds will be enforceable (to the same extent and subject to the same rules as other provisions) in an ordinary dispute in the courts – if, that is, the courts determine the provision to be constitutional – and will also be enforceable by subsequent presidents. The claim of identical substance is irrelevant because the defect in a line-item veto is purely procedural – a failure, as the Supreme Court put it, to act “in accord with a single finely wrought and exhaustively considered procedure.” By contrast, a president’s signing a bill into law fully comports with that procedure.


3.  Will asserts that President Bush has used signing statements “to tell the executive branch that some provisions of bills he signs into law need not be enforced for constitutional or policy reasons.”  (Emphasis in original.)  This is the first time that I’ve encountered the charge that such signing statements have been based on non-constitutional “policy reasons.”  I don’t believe that I’ve ever heard this charge before, and I don’t believe that it’s accurate.  (As always, I welcome correction.)


4.  Will endorses this proposition:  “If a president has the power to instruct the government not to enforce laws that he alone has declared to be unconstitutional, then he could free himself from the need to obey laws that restrict his own actions.”  I’m not quite sure I know what the proposition means.  If it means simply that a president who can tell executive-branch officials not to enforce laws that he believes to be unconstitutional can also decide not to enforce those same laws himself, then of course it’s true.  Why should it be otherwise?  As I stated a year ago:


Let’s assume that the President has signed into law a defense appropriations bill that he believes essential for the national defense.  One provision of the bill provides that ABA president Michael Greco shall immediately be detained, displayed in public stocks, and subjected to ridicule until he confesses to what a partisan hack he is.  The President recognizes that, alas, this provision is unconstitutional.  Can anyone seriously maintain that the President’s only constitutional option, once he has signed the bill, is to implement that provision until such time as some court rules it unconstitutional?  Why, pray tell, is the President’s obligation to obey the Constitution dependent on the prior say-so of a “subordinate tribunal”?


The president’s actions would of course be subject to judicial challenge under the usual rules (as well as to political challenge).  If  the quoted proposition means something other than what I posit, then it would appear to be a non sequitur.


Bottom line:  It’s fair game to dispute the substantive constitutional positions that a president sets forth in signing statements.  It’s hopelessly confused (for reasons I’ve barely touched on here; read the essays hyperlinked above for more) to believe that there is something wrong with using the vehicle of signing statements to direct the executive branch not to enforce provisions of a bill that the president is signing into law.

Tags: Whelan

Status Report on Appellate-Court Nominations


With the Senate in recess until September 4, here’s a status report on nominees to the federal courts of appeals.  Because it matters for internal Senate politics, I also list the state supposedly associated with each seat.  (I say “supposedly” because the work of circuit judges is not tied to any particular state, and the law does not identify their seats by state.)  

1.  One nominee—Judge Leslie Southwick (5th Circuit, Mississippi)—has been reported to the Senate floor. 

2.  Two nominees—Peter Keisler (D.C. Circuit) and Judge Jennifer Walker Elrod (5th Circuit, Texas)—have had their hearings but have not yet been voted out of committee.  Keisler’s hearing took place over a year ago, on August 1, 2006.  Elrod’s occurred last month. 

I note again that in mid-January 2007 (as I discussed here), the Los Angeles Times specifically recommended that Senate Democrats confirm Keisler and, more generally, display a “cooperative spirit” rather than “obstructionism” and “forswear knee-jerk opposition to Bush appointees who are within the legal mainstream.”   

3.  Six nominees—Shalom D. Stone (3rd Circuit, New Jersey), Judge Robert J. Conrad (4th Circuit, North Carolina), Judge Catharina Haynes (5th Circuit, Texas), Raymond M. Kethledge (6th Circuit, Michigan), Stephen J. Murphy (6th Circuit, Michigan), and Judge John Tinder (7th Circuit, Indiana)—await their hearings.  Kethledge and Murphy were first nominated in June 2006, and their nominations were resubmitted in March 2007.  The other four were nominated in mid-July 2007.


(Basic background information on all nine of these pending appellate nominees is available via the hyperlinks in the sidebar on this White House webpage.) 


4.  Only three appellate nominees—Debra Livingston (2nd Circuit, New York), Thomas Hardiman (3rd Circuit, Pennsylvania), and N. Randy Smith (9th Circuit, Idaho)—have been confirmed in 2007.  All three had originally been nominated in previous years. 


5.  Eight court of appeals vacancies, including four in the 4th Circuit (one Maryland, one South Carolina, and two Virginia), await nominations.   


I welcome any corrections to this summary.

Tags: Whelan

Fourth Circuit “Up for Grabs”?


Today’s Washington Post reports on the potential ideological shift of the U.S. Court of Appeals for the Fourth Circuit due to unfilled vacancies.

The U.S. Court of Appeals for the 4th Circuit, long considered one of the nation’s most conservative appellate courts, is shifting to a moderate direction with the balance up for grabs. A growing list of vacancies — now five — has left the court evenly divided between Republican and Democratic appointees.

With an election year approaching, experts predict the court will tilt decisively to the left if Democrats keep control of Congress and reclaim the White House.

“There is a very good chance that this court will be solidly Democratic for many, many years,” said Arthur D. Hellman, a University of Pittsburgh law professor. He said the current 5-5 split — which began July 17 when Judge H. Emory Widener Jr., a Republican appointee, took semi-retirement — is “tremendously significant.” . . . .

“The White House has not moved with an urgency that is warranted by the situation,” said Charles J. Cooper, a Justice Department official in the Reagan administration, who called the 4th Circuit’s vacancies “an absolute crisis.” He said Senate Democrats also deserve blame for blocking Bush’s earlier nominees.


This Week in Liberal Judicial Activism—Week of August 6


Aug. 6       1993—In a harbinger of nominations to come, President Clinton’s first batch of nominees to the federal courts of appeals seat includes Tennessee supreme court justice, and liberal judicial activist, Martha Craig Daughtrey.  Among other things, as a state supreme court justice, Daughtrey never voted to affirm a death sentence, and she joined an opinion condemning the death penalty (see This Week for Apr. 26, 1987).  In an opinion full of frolics and detours, she extrapolated a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes.  (See This Week for June 1, 1992.)   She also found that the state constitution protects obscenity.  (See This Week for May 17, 1993.)    

Aug. 9       1969—“Now is the time for Helter Skelter,” declares Charles Manson, triggering two nights of vicious killing by the “Manson Family” in Los Angeles.  Some 2½ years later, in its own rampage (see This Week for Feb. 18, 1972), the California supreme court voids the death sentences that had been imposed on Manson and four other Family members. 


Aug. 11     2006—Charles Manson, meet Rosemary Barkett.  In a separate opinion in Henyard v. McDonough, Eleventh Circuit judge Barkett, reaching out to address an issue that she concedes (with considerable understatement) “may not be directly before us,” opines that the Eighth Amendment should be construed to bar the death penalty for murderers “with a mental age of less than eighteen years.”  What exactly Barkett means by “mental age” is confused.  At one point, she quotes, with seeming approval, a definition of “mental age” as the “chronological age equivalent of the person’s highest level of mental capacity.”  But she inconsistently equates it with “emotional level” and says that “even high IQ in an adult defendant” is compatible with “a mental age of a child.”  Her test appears to be whether a murderer shares a “child’s inability to understand why the rules exist, to appreciate the consequences of breaking them for herself and for society, and to consistently make judgments based on the foregoing.” 

Barkett’s test virtually ensures that most heinous murderers will be deemed to have a mental age below 18.  Indeed, she states that there is “no dispute” that Richard Henyard—who carjacked a mother and her two daughters (ages 7 and 3), raped and shot the mother, and shot and killed the daughters—has a mental age below 18.

Barkett’s test would seem to establish that she has the mental age of a child.  Does This Week perennial Barkett “understand why the rules exist”?  Does she “appreciate the consequences of breaking them”—through her lawless judicial activism?  Does she “consistently make judgments based” on those understandings?  From the evidence that pervades This Week entries, the answers are no, no, and no.

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

Yes, We Have Gone Bananas


In today’s Washington Post, Bush Derangement Syndrome claims another victim.  Robert Dallek, crafter of great biographical doorstops, has hit upon the fabulous idea of amending the U.S. Constitution to enable the plebiscitary recall of presidents and vice presidents, provided 60% of each house of Congress wants to oust them and a simple majority of the electorate agrees.  If both the president and vice president are removed (“immediately,” says Dallek), the Speaker of the House would become president.

If it were Dallek’s intention to transform the United States into a banana republic, or to introduce Hugo-Chavezismo into American politics, he could hardly have hit upon a better idea.  Sensible people will reject it out of hand.  But it proceeds from an impatience with ordinary politics, and a contempt for (or ignorance of) the principles of our constitutional order, that ought to receive a little attention. 

Dallek starts his argument this way: “There are good reasons to see [George W. Bush] as a failed president whose remaining time in office will be unproductive at best and destructive to the country’s well-being at worst.”  He supplies exactly none of these “good reasons,” but that is not my point here.  What this all-worked-up indignation amounts to is Dallek saying “I dislike George Bush and his policies, and so do a lot of other people.”  But the American presidency is not a plebiscitary office, and the commonplace observation that sometimes a lot of people have a low opinion of their president (a phenomenon often seen late in a president’s term) hardly amounts to a reason to convert it into one.

Bush is a “failed president,” says Dallek.  Sometimes it seems that a memo has gone around Washington encouraging people to say this as often as possible, in order to gin up a self-fulfilling prophecy.  But an alleged historian such as Dallek ought to know that the answer to the question, “Is sitting President X a success or a failure?” is almost always, “It’s too soon to tell.”  I say almost always because this rule has the well-known James Buchanan-Jimmy Carter Exceptions. 

But again, the point is not to argue whether Bush belongs in that exceptional category, of the president known to be a failure before any historical hindsight has become possible.  The point is that our Constitution, with its fixed electoral rhythms, is quite indifferent to the question of a president’s (or senator’s, or representative’s) popularity with his constituents at any other time than at the moment of an election in which he is eligible for reelection and seeks it.  This is not a defect of the Constitution, but a virtue.  Elected officials under our system are given time to use their judgment, and constitutional authority to employ political power according to their own judgment, because the framers of the Constitution thought it a bad idea to engage in the ad-hockery of returning to the well of public opinion too often.  The public’s judgment of public policy is more likely to be deficient, more often, than the judgment of those whom we elect to serve us.  That’s why we elected them.  (And this is not even to raise the obvious additional objection to Dallek’s scheme, that it is an invitation to make partisan politics more ruthless and extreme than it already is.) 

If we get buyer’s remorse, we have regularly scheduled opportunities to register that considered judgment.  We know when those opportunities appear on the calendar.  Robert Dallek would like to institutionalize the exercise of ill-considered judgment–the “sudden breese of passion” against which Alexander Hamilton warned us in Federalist No. 71.  He is sanguine that the recall power will only be used in the exceptional and extreme cases.  But his opinion on this is tainted by the fact that he believes such a case is before his eyes right now.  A Constitution should never be amended in anger (see: 22nd Amendment), and it should be written to provide for the normal practices of ordinary politics–not to provide for the abnormalization of the normal.

Once again, we may be properly grateful to the framers for having made the Constitution difficult to amend.


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