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.