Are We All Living Constitutionalists Now?
Jack Balkin tries to make the case in a provocative essay over at Slate. I think the essay is less an argument for a living Constitution than an argument against originalism, but it's an interesting read either way.
Scott Scheule (mail) (www):
I don't think it's a particularly good essay myself, but some may find the list of reductio ad absurdums compelling. Indeed, many do in my experience. I, myself, do not.
8.29.2005 7:43pm
The Plumber (www):
He is right. There are numerous laws that do not conform to a strict interpretation of our Constitution.

The Constitution is a perfect document if it is interpreted strictly. The problems (equal rights for minorities and women) were not with the Constitution, but with the unequal application of the document. To show that they were willing to allow flexibility in the Contract, the Founders gave us the ability to amend the document.

I'm a dumb plumber, he's a smart professor. Why do I pity his students? It's said that ignorance is bliss, as a result of reading his article, I felt happier immediately.
8.29.2005 8:11pm
The notion of a "living" constitution is just a metaphor, and I think it is a metaphor that may well have outlived its usefulness (pun intended). According to the essay, "A living Constitution requires that judges faithfully apply the constitutional text, given the meanings the words had when they were first enacted, applying those words to today's circumstances." Wouldn't something like "A frequently-contextual Constitution" work equally well in this sentence (and feel free to propose your own alternative if you don't like mine). And if the notion of a "living" constitution frightens or angers a significant number of people who otherwise would accept this basic judicial philosophy, then I see no reason to insist on the metaphor.
8.29.2005 8:51pm
Yes, the term living constitution was definitely an Orwellian turn of phrase. There is nothing particular "dead" about the alternative views on the constitution. Moreover, some of his points are depressingly little bits of nonsense.

"Many Americans fail to realize how much of our current law and institutions are inconsistent with the original expectations of the founding generation." Most people who argue against the living constitution do so explicitly because of this reason. Therefore, one might equally use this point to argue: people believe as a fundamental principle that we should follow original intent or amend; regretfully they are not aware of how far things have strayed and thus tolerate much more than they would if they were informed.

"not to mention most federal civil rights laws that protect women, racial and religious minorities, and the disabled from private discrimination." Has this man heard of the 14th amendment? When will people stop setting up the straw-man where-by Originalism eviscerates the amendments of all efficacy.

"Independent federal agencies like the Federal Reserve Board, the Federal Trade Commission, and the Federal Communications Commission would all be unconstitutional under the original understanding of the Constitution." ::cough, cough:: no, though congress might not be able to delegate to them quasi legistlative powers.

"A host of federal laws securing the environment, protecting workers and consumers—even central aspects of Social Security—go beyond the original understanding of federal power" Maybe we need an amendment? Honestly, if there is so much consensus that these issues should be Federally regulated where is the amendment to make it so?

"Indeed, most of the Bush administration's policy goals—from No Child Left Behind to national tort reform—would be beyond federal power" This is blatently untrue. The former takes its berth in the power to tax (and spend). Whether the latter would be unconstitutional is dubious as it covers only actions between entities in different states.

"If you reject the living Constitution, you also reject constitutional guarantees of equality for women, not to mention Brown v. Board of Education and Loving v. Virginia, which struck down laws banning interracial marriage." Um, 9th amendment anyone? Combined under the 14th? Enumerated Powers Doctrine?

"nor does it justify the current scope of executive power." Last time I checked, liberals were especially concerned about the scope (and abuses) of executive power. Sadly most of them are unwilling to come to terms with the beast they created in 1931.

"In fact, the contemporary movement for originalism began as a conservative political slogan used to attack the Warren Court's decisions on race and criminal procedure." This much is true.

But... that's because the form of originalism presented for such political purposes had some glaring contradictions. Again surrounding the 9th amendment.

I am always amazed by sheer lack of congnition that a third way exists. This is not a battle between majoritarians and liberals. Its a battle between majoritarian conservatives, majoritarian leftists, and liberals. Sadly there are very few of the last category, and very many people who mistakenly don't realize the dominance of the second.
8.29.2005 9:31pm
He is talking about the original understanding of the 14th amendment, which would almost certainly not allow for Brown and would certainly not allow for Loving or for equal rights for women or the voting rights cases.
8.29.2005 9:51pm
frank cross (mail):
Out of curiosity, is there an originalist answer to the paper money question? It's pretty clear from text and very clear from originalist intent, that paper money is unconstitutional. Would a good originalist judge declare all paper money null and void?
8.29.2005 10:39pm
Carl Sanders (mail):
I think one thing to be said for the "living constitution" that might make it more palatable is the idea that it embodies things that are not really "worth" making an amendment over (if the paper-money poster is correct, that would be an example) but that everyone agrees is a necessary law. Not that I really believe this, or that judges are particularly good at figuring out what the "current context" tells us to do (e.g. whether the death penalty is cruel and unusual.)
8.29.2005 10:49pm
TDPerkins (mail):
Frank, I think an originalist judge would declare unconstitutional money which was not either 100% backed by specie or money in the form of a contract note to be 100% redeemable in the future, such notes would naturally appreciate to their nominal value as the date approached. Also, if the judge was a good economist and a pragmatist, they'd declare our fiat currenct unconstitutional. Better whatever pain now than a worse pain later.

The test of orginalism is not rote obedience to an explicit phrase, "coin money", but fidelity to a clearly elided principle--hard money, not fiat currency. Since private contracts cannot be impaired, perhaps fractional reserve currency can constitutionally be indulged in by the speculative as a form of contract, but they shouldn't be allowed to pay taxes with it, not without an appropriate devaluation.

Yours, TDP, ml, msl, &pfpp
8.30.2005 12:07am
Steve Burton (mail) (www):
If and when ideological conservatives achieve a majority on the court, they will discover the virtues of "living constitutionalism" quicker than you can boil asparagus.

By a strange coincidence, the left will discover the virtues of "originalism" at precisely the same moment.

The intellectual foundations of both positions are sufficiently well laid that any reasonably smart person with an interest at stake can sign up for either side with little fear of embarassment.

So there's only one genuinely interesting question here: will ideological conservatives ever achieve a majority on the court? 'Cause that's when things might get interesting.
8.30.2005 12:09am
Friedrich Foresight (mail):
Balkin glides over the difference between (a) the current interpretation growing organically away from the original, step by step, by a process of societal consensus (ie, that "coin money" allows paper), vs (b) using a non-original, pulled-out-of-nowhere "interpretation" as a trump card to win some ongoing political battle.
8.30.2005 12:20am

There are at least two kinds of originalism that I am aware of. Your point may hold under original intent, but I doubt it would hold under original meaning. It requires only an appeal to the 9th amendment via the Privledges and Immunities clause of the 14th.

The essay muddles these together quite ironically.

"The framers expected that their language, not their intentions, would control future generations. They created, in John Marshall's words, a "constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.""

As it happens, there are many people who believe these words, call themselves originalists, and decry the living constitution.

b.c. the defining characteristic of the living consitutition is in fact to ignore the language of framers.
8.30.2005 1:12am
TDPerkins (mail):
Friedrich Foresight, I appreciate your use of shorthand, but money which is 1) 100$ backed by specie, 2) backed by specie to a known fraction, and 3) redeemable at 100% in specie at an agreed upon date actually serves equally well to the purpose to which the "coin money" phrase was adopted--that the government can't debase the currency. I don't think a case can be made that the Founders actually eschewed paper money in pratice, hence the "growing organically away from the original, step by step, by a process of societal consensus (ie, that "coin money" allows paper)" is a very small and incremental evolution if in fact one at all, though your point about " non-original, pulled-out-of-nowhere "interpretation" as a trump card to win some ongoing political battle" should be very well taken.

Yours, TDP, ml, msl, &pfpp
8.30.2005 1:16am
TDPerkins (mail):
My god was that only two sentences? I blame the grape. Yours, TDP, ml, msl, &pfpp
8.30.2005 1:18am
The General:

"And that brings us to the real secret of why we have a living Constitution. In the long run, the Supreme Court has helped secure greater protection for civil rights and civil liberties not because judges are smarter or nobler, but because the American people have demanded it."

Judges are not devine interpreters of what the "American people have demanded" but rather are on the bench to interpret the law. Perhaps the most fundamental right of our country is our right to govern ourselves. The Constitution permits us to do this through our elected officials, who are responsive to public opinion, whereas the courts are not. And how would Professor Balkin have the courts determine whether or not the American people have demanded one thing or another other than by election results? Polls? As they say, there is only one poll that counts, and that is election day, and no Supreme Court justice is any ballot.

"Rather than a set of shackles designed by long-dead slave-owners, the framers bequeathed to us a Constitution that could adapt to the needs and aspirations of each succeeding generation. Their faith in the possibilities of the future, and our enterprise in realizing that future, have made us the great and free nation we are today."

Justice Scalia's response to this canard is right on target. He said:

"And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again. My Constitution is a very flexible Constitution. You think the death penalty is a good idea: persuade your fellow citizens and adopt it. You think it's a bad idea: persuade them the other way and eliminate it. You want a right to abortion: create it the way most rights are created in a democratic society. Persuade your fellow citizens it's a good idea, and enact it. You want the opposite, persuade them the other way. That's flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what a constitution is designed to produce: rigidity.

"Abortion, for example, is offstage, it is off the democratic stage, it is no use debating it, it is unconstitutional. I mean prohibiting it is unconstitutional. I mean it's no use debating it anymore. Now and forever, coast to coast, I guess until we amend the constitution, which is a difficult thing. So, for whatever reason you might like the Living Constitution, don't like it because it provides flexibility. That's not the name of the game."

Lastly, anyone who argues that the outcome in Brown v. Board of Education must be different under an originalist interpretation is plainly ignorant of the arguments to the contrary. Originalists such as Judge Robert Bork and Judge Michael McConnell have argued that the outcome in Brown would be the same under an originalist interpretation.
8.30.2005 1:20am
Adam (mail) (www):
"Independent federal agencies like the Federal Reserve Board, the Federal Trade Commission, and the Federal Communications Commission would all be unconstitutional under the original understanding of the Constitution." ::cough, cough:: no, though congress might not be able to delegate to them quasi legistlative powers

Well, if adminstrative agencies can't promulgate binding regulations, what good are they?
8.30.2005 1:36am
TDPerkins (mail):
"would be the same under an originalist interpreatation"

The article led to by the link makes good sense, on top of which, if nothing else, "separate but equal" would have to be, you know, equal.

As 't'was, it weren't even a fig leaf, so it should have expired by the hand of the ratifiers of the 14th amendment.

And I've no idea why the 13th, 14th, and 15th might be regarded as exemplars of a living constitution, they were in fact adopted according to article 5, weren't they? The notion there was a smoke filled room deal for the removal of Reconstruction troops cuts no ice, in my opinion.

Yours, TDP, ml, msl, &pfpp
8.30.2005 1:37am
Robert Schwartz (mail):
I was seriously unimpressed with this article.

The key sentence in the argument was: "Nobody, and I mean nobody, whether Democrat or Republican, really wants to live under the Constitution according to the original understanding once they truly understand what that entails."

I am sure that nobody, and he means nobody, whether Democrat or Republican, could possibly have voted for George Bush. And I am sure that is true in his little world.

But the real giveaway is at the end of the screed: "a set of shackles designed by long-dead slave-owners" Which is the bottom line of all liberal argument these days. Once they have run out of bullets they equate conservatism with Klan membership. Of course the only real Klan member is their hero and their theory of constitutional law was invented by another real Klansman. But why let a few facts ruin a good rant.
8.30.2005 2:18am
If you limit "originalism" to true "original meaning" then I am an originalist and so is Balkin. But the "original understanding" is NOT as Scalia claims original meaning. It is taking the original application, and assuming it was intended to be binding forever. It's warmed over original intent.

As far as Brown, I don't find McConnell's argument is convincing, and as I said, it's Loving and the gender cases that are truly impossible to reconcile with originalism. I also find Scalia's argument on Brown completely unconvincing. I do find Bork's convincing, but it is not originalist in the sense that the term is always used. (If that approach is originalist I am originalist. I know Bork's one of the patriarchs of the movement, but saying that a Constitutional provision should be applied differently based on changed historical circumstances and new knowledge.)

Scalia's approach gives the legislature great flexibility when it comes to social issues, but that it is not the same thing as a flexible Constitution.

The point about slavery is not that you're in the KKK if you're conservative. It is this: when originalists talk about the "democratic legitimacy" conferred by the ratifying "supermajority"--it does not seem to be relevant at all to them that the supermajority was actually a pathetic minority of those who should have been allowed to vote. You don't have to dismiss the founders as nothing more than patriarchal slaveowning dead white opressors, or whatever the stereotypical PC view is, to see that this raises very serious legitimacy problems for the Constitution. Fortunately they kept their irrational prejudices out of the text to a great extent, and the parts that got in were remedied after the civil war, and 13th, 14th, 15th and 19th amendments go a long way. But originalists argue that we are not only bound by the words of the ratifiers, but by everything in their heads.
8.30.2005 3:34am
This is my very favorite quotation on the originalism debate. It's from Abraham Lincoln, on the Dredd Scott case. They are talking about the Declaration of Independence, not the Constitution. But the principles of interpretation are the same. Scalia and Thomas make the exact same sorts of arguments as Taney and Douglas, arguing that the meaning of the text is limited to its original application. Those arguments, if followed to their logical conclusion, would equally make a "mere wreck--mangled ruin--of our once glorious" document.

Chief Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include Negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another. And this is the staple argument of both the Chief Justice and the Senator, for doing this obvious violence to the plain unmistakable language of the Declaration. I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness." This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. The assertion that "all men are created equal" was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that, but for future use. Its authors meant it to be, thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should re-appear in this fair land and commence their vocation they should find left for them at least one hard nut to crack.

I have now briefly expressed my view of the meaning and objects of that part of the Declaration of Independence which declares that "all men are created equal."

Now let us hear Judge Douglas' view of the same subject, as I find it in the printed report of his late speech. Here it is:

"No man can vindicate the character, motives and conduct of the signers of the Declaration of Independence, except upon the hypothesis that they referred to the white race alone, and not to the African, when they declared all men to have been created equal—that they were speaking of British subjects on this continent being equal to British subjects born and residing in Great Britain—that they were entitled to the same inalienable rights, and among them were enumerated life, liberty and the pursuit of happiness. The Declaration was adopted for the purpose of justifying the colonists in the eyes of the civilized world in withdrawing their allegiance from the British crown, and dissolving their connection with the mother country."

My good friends, read that carefully over some leisure hour, and ponder well upon it—see what a mere wreck—mangled ruin—it makes of our once glorious Declaration.
8.30.2005 3:42am
(I realize that the Declaration of Independence is aspirational and the Constitution is supposed to be the law of the land. But what Lincoln's speech makes crystal clear, is that original meaning and original application are simply not the same thing. The inconsistency between the words of the Declaration of Independence and the fact that Thomas Jefferson owned slaves--it is not because the meaning of the word "men", "equal", "inalienable", "rights", "life", "liberty", "pursuit", or "happiness" has changed. Those words meant in 1776 essentially what they mean today. Jefferson just didn't live up to them.

In much the same way, "no", "state", "shall", "deny", "person," "equal", "protection", "laws"--those words meant the same thing when the Court decided Plessy as when it decided Brown; meant the same thing when the Justice Bradley was talking about how the "divine ordinance" forbade women from practicing law as they do now; when miscegenation was unthinkable as when Loving was handed down. The words' meaning has not changed; it's just that until the Warren Court the country was not willing to live up to them.
8.30.2005 3:53am

"But originalists argue that we are not only bound by the words of the ratifiers, but by everything in their heads."

That is *a* form of originalism that has been proposed and rather thoroughly torn apart. Please see Randy Barnett's book "Restoring the Lost Constitution" for a discussion on another way to be an originalist.

You should be especially interested because it goes right to the heart of your implied consent/ratification argument.

I disagree with your assertion that originalist as in original meaning is Balkin's position in any sense of the word originalist.. He's a leftist majoritarian supporting a handful of token liberties that serve more as a magician's distraction than substantive liberalism.
8.30.2005 7:39am
magoo (mail):
Professor Cross -- The vast bulk of thoughtful originalists, including Justice Scalia, recognize that stare decisis still had a vital role to play. The "paper money" issue presents a problem only for the small fraction of originalists who espouse originalism uber alles. I believe that small crowd includes some of the VC conspirators.
8.30.2005 8:28am
magoo (mail):
I didn't find the Balkin post to be all that interesting. It's based on a lot of tired canards, such as (1) originalism is irreconcilable with Brown (see Judge McConnell's work to the contrary), (2) originalism requires an application of the Framers' subjective intent, and (3) any originalist who adheres to precedent over original meaning in any context is a hypocrite. Thoughtful debate on originalism has advanced light years beyond this.
8.30.2005 8:34am
anonymous coward:
"Lastly, anyone who argues that the outcome in Brown v. Board of Education must be different under an originalist interpretation is plainly ignorant of the arguments to the contrary." Don't be silly.

Balkin has an interesting blog post on the topic.
8.30.2005 9:14am
AppSocRes (mail):
Much anti-originalist arguing about intent -- particularly regarding slavery -- would be defused if people paid more attention to the "organic law" of the United States, USC1 Section 1, which comprises four (not one) documents, viz., The Declaration of Independence, The Articles of Confederation, the Northwest Territories Act, and the Constitution and its amendments. It is particularly interesting to note the desire to eliminate slavery that appears in the Northwest Territories Act -- the first and only major piece of legislation passed under the Articles of Confederation. Many, if not most, even of the slave-holding authors of the Constitution, e.g., Mason, Washington, despised slavery and devoutly wished its rapid eradication. I know for certain that the two I've mentioned emancipated their slaves. It is also worthwhile examining the differences between the Articles of Confederation and the Constitution. These are far fewer than most people think and clarify tremendously the intent of the original constitutional convention. As Richard Possner has noted, the major failing of today's constitutional "scholars" is their shocking unfamiliarity with the text of the original document and its history: Instead they focus on Supreme Court decisions by judges who, in my opinion, are intellectual pygmies compared to the men who wrote the document they are so assiduously traducing.
8.30.2005 9:23am
Tom Perkins (mail):
Katherine, we are bound by their words and what is in their heads unless we modify the Constitution by Article 5. Anything else is abandoning the rule of law for a majoritarian totalitarianism bounded only by what a majority of the Supreme Court thinks it can get away with in a contrarian decision, and not bounded at all when the SC is going with the flow.

AppSocRes makes good points about what the "organic Law" of the nation is, and he makes a better point about how the Founders hoped slavery would be resolved, by halting it's expansion and voluntary obsolescence and that quickly.

magoo, "originalism uber alles" is the law of the land, which we are currently ignoring to our imagined advantage. What we have is that barely bounded majoritarian totalitarianism. I can't imagine why you think it's an improvement.

Yours, TDP, ml, msl, &pfpp
8.30.2005 10:11am
Richard Bellamy (mail):
In my mind, the best argument against Originalism, is that the Founders and Framers were not Originalists. They "reinterpreted" their Constitution just as freely -- if not more so -- than we did.

My favorite anecdote in George Washington wanted to sign a treaty with an Indian tribe in 1789, his first year as President. He went to his copy of the Constitution (can you imagine anyone doing that now?) and saw that he needed to get the "advise and consent" of the Senate in order to get a treaty ratified. So, reading the Constitution to mean "advise" before, and "consent" afterward (a natural reading), on August 22, 1789, Washington marched himself over to the Senate chambers and asked for "advice."

The meeting with the Senate was a disaster (imagine President Bush walking into the Senate and asking "What do you guys think we should do about North Korea?")

No good advice, let alone consent, was given, and afterwards
"advise and consent" was read to mean, essentially,
"just consent."

That's probably the first case of Constitutional re-interpretation, but there was never a Court challenge, so you don't read about it in Law School text books. But the truth is that the Founders were simply not Originalists. They were not Talmudic scholars and close textual readers. They were, largely, "Wing-it-ists", and maybe there's something to be said for that.
8.30.2005 10:45am
Tom Perkins (mail):
Mr. Bellamy, I think you are confusing what Washington specifically did with being what the Founders neccessarily solely intended, when the intentions of the group are more relevant than an individual's uncontroversial and idiosyncratic actions on a single event. What's more, there being no evidence I am aware of (it would be good of you to provide if you have any) that the other Founders/Framers still living thought either course of action was not in keeping with the course of action prescribed by the constitution, you can't say that such "interpretation" is an anecdote in support of a "living" constitution and it's emanations and penumbras.

In fact you are very much putting the cart before the horse to say that what the Founders did is not original intent... Unless you are saying they were not acting intentionally ;^)

As for them being "Wing-it-ists" where they did never wing it in any sense was in granting the federal government sweeping authority absent an article 5 amendment. Where is the amendment for Social Security? Where is the amendment for the EPA, OSHA, ATF, DEA, FDA, and Dept. of Ed.?

Where is the legal leg the New Deal stands on (the economic leg having always been an illusion)? Does the federal government in the main in fact pass a rational test of what would be required to authorize it's existence, in the main, in light of article 5? How is majoritarian totalitarianism better than a constitutionally limited federal republic?

Yours, TDP, ml, msl, &pfpp
8.30.2005 11:26am
Eh Nonymous (mail) (www):
Hi, all. I apologize in advance for not reading all of the above comments, but life is short; I'll link to this post later.

Meantime, please come on over to my blawg, Unused &Probably Unusable, where I am discussing... wait for it...

The Living Constitution

in my first installment of the fabled Scalia Mega-Post, now hitting newstands. Er, newsreaders.
8.30.2005 12:07pm
SimonD (mail):
I'm so pissed that I'm still spitting feathers about this essay. As others have more eloquently pointed out, it is a flight of fancy between absurdity and the furthest reaches of falsehood; a barely-coherent combination of half-truths, bifurcation and false conflation (wherever it best suits his agenda), and a veritable platoon of straw men.

Balkin intermingles cases which SHOULD be overturned with cases that original INTENT might overturn, but that any reputable form of originalism (do you know any originalists who subscribe to original intent? ANYONE?) would uphold. In the same breath, he mentions Brown and Griswold. While this is, on its face, preposterous, it isn't the worst part: Balkin paints the living constitutionalist as the white knight, soaring in on Pegasus to save society from these terrible shackles of 18th century barbary and 20th century bigotry. You have to picture Justice Breyer, in the Ed Harris role from Apollo 13, screaming "I don't care what it was DESIGNED to do, I care what it CAN do!" Balkin argues that "a living Constitution requires that judges faithfully apply the constitutional text" - this is so preposterous as to defy belief. What is the "faithful textual grounding" for Roe or Griswold?

Contra Balkin, the constitution is not a set of shakles, but neither is it a swiss army knife. Not every problem facing society can or will be solved by the existing constitution, or by the Federal government. It is true that originalism would drastically circumscribe the activities of the federal government and the imperial presidency. So? It's also true that it would render much of President Bush's policy agenda unconstitutional. Again - so? And doesn't that rather undercut the notion that originalism is just a Republican artifice?

The choice is not between rule by judicial oligarchy or the obsolete shackles of the long-dead past. The constitution is not a pair of shackles; it speaks vividly and clearly to modern needs, even given the original meaning of its words. I dissent.
8.30.2005 12:48pm
SimonD (mail):
Incidentally, Balkin notes that "the Congress that passed the 14th Amendment also engaged in affirmative action for blacks". Yeah? How many Senators were elected to the Congress which proposed (not passed, proposed) the 17th amendment? Not many. See Zelizer, The American Congress, pp.356-368. Within a decade of the passage of the bill of rights, many of the same people who voted for the first amenment voted for the sedition laws. If Congress tommorow passed the Platt amendment and proposed term limits on itself, most of the people voting for it, by necessity, would be people who had served more years than those limits.

Even if one buys into the idea that the Congress which passed the 14th amendment engaged in affirmative action, which is itself a highly dubious proposition, it is meaningless to assume that this *necessarily* means that the 14th amendment was passed to legitimize these matters. Evidence, yes, conclusive, no.
8.30.2005 12:57pm
Tom Perkins,

What if all the organs of government, including the Supreme Court, are bound by the text of the Constitution (using the meaning of the words at the time of ratification), but not by the subjective intent (collectivized in some mysterious way) of the ratifiers? Why isn't that amount of binding sufficient to describe our government as operating according to the "rule of law". In other words, why does "law" have to incorporate more than text and meaning, but also go so far as to incorporate intent, in order to be law at all?

That is not to say we could not choose to have a system of law where subjective intent is binding (again assuming there is any sensible way to think of collectivizing such intent). But what makes such a choice NECESSARY in your view?
8.30.2005 12:59pm

I take it you are getting a lot out of the word "faithful" in "faithful textual grounding," because Roe does locate the relevant right to privacy in the Due Process Clause of the 14th Amendment. So I take it your claim is that the Court was reading that text in the wrong way ... but that is not quite the same thing as that Court not trying to read the text at all. And personally, I am frustrated with the attitude, all too common on either side of important constitutional debates, that declares any reading with which one disagrees as an "unfaithful" reading.
8.30.2005 1:11pm
WHerndon (mail):
This post cuts to the heart of the dilemma for me, a legal layman and not a lawyer, about how to interpret the Constitution. Politically, I lean center-right. Over the years, I've generally considered myself as a supporter of the "strict constructionist" or "originalist" points of views. And yet, I've been reluctant to abandon some aspects of the "Living Constitution" approach.

In recent years, I've read extensively on the history of the founding and on the lives of key founders. I've combined that with my first truly systematic effort to figure out what I think about the role of the Supreme Court. The effect has been to solidify my views in some areas, but to cloud them in others. I still lean toward a conservative reading of the Constitution, but less so than I did before.

I am stranded.

Here's my problem. I flatly reject the idea that a scientific (or tightly logical) approach can be created for intepreting the Constitution. By and large, it's conservatives -- my political brethren -- who are at the forefront of trying to create -- or revive -- a more systematic approach.

On the other hand, I devoutly reject the idea of a "Living Constitution," as loosely practiced by William Brennan and his progeny. If the Constitution can be so drastically modified by the high priests on the Supreme Court, the document could be rendered useless.

A legal document unmoored from its past, like a ship without an anchor, is subject to the vicissitudes of the tides -- in this case the personal (and hence political!). A such, it's little different from the executive or legislative branches. Let's put membership on the court in such a scenario to the voters themselves.

Of course, that would not do. So where does that leave me? As a general organizing principle in my life, I always want a small amount of flexibility in any mode of thinking and acting that I devise. (It's for that reason, to cite one example, that I reject the argument that the Federal Reserve ought to be bound to an official inflation target).

On the other hand, I believe something --original understanding, precedent, political caution, personal humility, you name it -- ought to act as a constraining influence on judges. As Scalia has said, it is truly a seductive idea for judges to believe that whatever they think is what the Constitution means. Such an approach is dangerous and invites political backlash, as we have seen.

Given these considerations, I still lean toward an "originalist" point of view. I want to know what the founders meant, how certain parts of the document were originally understood and how they were put into actual practice.

Yet the Constitution itself, as everyone knows, does not dot every I and cross every T. From my reading of the early founders, many of them clearly knew they were writing an incomplete document that would be filled in, in no small part, by future generations. There's an open-endedness to certain phrases that defy easy explanation.

Which is why the founders quickly found themselves at odds over what they had decided -- as noted by the hilarious example give here of George Washington trying to ascertain the meaning and practicality of the "advise and consent" clause.

Moreover, many contentious issues were left for another day. Indeed, the oft-criticized practice of modern lawmakers to sidestep controversial issues and let the Supreme Court decide had its antecedent in the actions of our Founding Fathers.

In light of the document's incompleteness, the Constitution has, in my view, an "organic" aspect to it. The Constitution is neither "dead," as Scalia would prefer it, nor living, as modern liberals argue.

The Constitution is in an indelible "in-between" state -- for lack of a better word -- that makes this debate over its meaning and application so timeless and insoluble.

So while I start with original intent and understanding, I do not end there. Like a young tree, the Constitution grew new branches, starting with John Marshall, that the founders had not anticipated. Some of those branches have been shorn off; others left to wither as Constitutional dead ends.

To the "branches" that remain healthy and growing is owed some respect -- my notion of stare decisis. Certain laws or approaches to the Constitution have become so ingrained that they ought not to be disburbed.

And yet as new problems arise -- or old ones are held to new scrutiny -- I do think there is some scope to reinterpret the protections granted by the Constitution in a new light.

Brown vs Board of Education, of course, is the classic example. Now, I know some people say "originalism" could accommodate Brown. Yet originalism also could have been deployed to decisively reject Brown. Even originalism, it seems, can be quite malleable.

Of course, the moral rightness of the Brown decision opened the floodgates to all sorts of activism on behalf of new rights, some of which were quite dubious constitutionally. And it spawned a 30-year backlash that may reach its heights with the nomination of John Roberts.

I am part of that backlash, as other some others here. Yet backlash ought not to become whiplash. The Constitution is not a plaything, to be tossed about lightly. As much as I may dislike some rulings, as a politcal conservative, I also value stability, in law especially.

That's not to say some ruling should not be overturned. I am not about to subscribe to the "judicial minimalism" of Cass Sunstein -- a thinly veiled effort to consolidate liberal rulings in a variety of areas.

Which means all of this leaves me and people who think like me -- the plurality of Americans, I'd argue -- in a sort of Constitutional purgatory.

We are all Originalists. We are all Living Constitutionalists.
8.30.2005 1:38pm
SimonD (mail):
There is no right to privacy in the text of the due process clause of the 14th amendment. Nor is one discernable by discarding fealty to the text and looking - as Balkin fallaciously suggests the living constitutionalist Judge goes - "to precedent, structure, and the country's history to flesh out the meaning of the text." The whole notion of substantive due process is a fundamentally invalid reading of the 14th amendment, period. Roe, like Griswold, was wrongly decided, and whether anyone agrees with them or not, they are certainly unfaithfull readings of the text.

In light of that subsequent comment, I'm curious as to what you meant by "What if all the organs of government, including the Supreme Court, are bound by the text of the Constitution (using the meaning of the words at the time of ratification), but not by the subjective intent (collectivized in some mysterious way) of the ratifiers". I presumed that you understood you're more-or-less quoting Justice Scalia verbatim (he would put it, "[y]ou will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words"), but now I'm not so sure?
8.30.2005 3:00pm

So, it appears to me that you are indeed saying that any reading of the text which is "invalid" in your opinion is therefore not an attempt to provide a "faithful reading" of the text. As I mentioned, this is the attitude which I find frustrating: that people who disagree on how to read something like the 14th cannot limit themselves to saying that the other person is reading it the wrong way, but instead must go on to accuse the other person of not even trying to be faithful to the text.

As for Justice Scalia, yes, I do indeed know that he is not an original-intent originalist (or at least he claims not to be, although in substance I would suggest he often crosses the line). But in the quote you noted I was asking a question to the poster Tom Perkins, who seemed to be suggesting that something like an original-intent originalism was a necessary corollary to the rule of law.
8.30.2005 3:22pm
SimonD (mail):
Which aspects are you unwilling to abandon? Why would one "flatly reject" an empirical approach to determining the meaning of the constitution, and the application of that meaning to the case at hand?

As for flexibility, a poster above (The General, at 8.30.2005 12:20am) quoted Scalia's point that the originalist's constitution is a very flexible constitution, and the adherent of the living constitution are here to bring you anything but. You can watch Nino give this speech here.

You touched on the need to restrain judges. Balkin did, too. But here's the catch: if you abandon originalism, what else is there? What criterion is to be brought forth to constrain our judges once we leave originalism behind us? Balkin offers none. I mean, he offers (hilariously and duplicitously) "precedent, structure, and the country's history". Where was the precedent for Griswold - or the respect for precedent in Lawrence? If they were adhered to, perhaps these would be good constraints. But on their own, they are clearly not sufficient to constrain someone like Steve Breyer, who is so keen to ensure that his rulings reflect the best possible (in his view) result that might plausibly be squeezed out of the judicial process that he'll even resort to foreign precedent! The desire to make the world anew, and to make it right this time, doens't make him a bad person, and in fact, speaks highly of him. But that isn't his job. If we had a constitutional convention, I would want Breyer there - but the Supreme court isn't it.

As for Brown - originalism is not ambigious about Brown. The ambiguity is created because original intent, as advocated by Meese et al, would overrule Brown, and this creates a neat soundbite for people like Balkin to deploy when writing for an audience - like Slate readers - who don't know any better. But every serious originalist I know of either (a) never bought into original intent, (b) has explicitly rejected original intent or (c) simply ignored original intent. see, e.g., Rutan v. Republican Party, 497 U.S. 62, 95-96 (Scalia, J., dissenting):
The customary invocation of demonstrating the dangerous consequences of this principle, is unsupportable. I argue for the role of tradition in giving content only to ambiguous constitutional text; no tradition can supersede the Constitution. In my view, the Fourteenth Amendment's requirement of "equal protection of the laws," combined with the Thirteenth Amendment's abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid. Moreover, even if one does not regard the Fourteenth Amendment as crystal clear on this point, a tradition of unchallenged validity did not exist with respect to the practice in Brown. To the contrary, in the 19th century, the principle of "separate-but-equal" had been vigorously opposed on constitutional grounds, litigated up to this Court, and upheld only over the dissent of one of our historically most respected Justices.
We may or may not be all originalists (Balkin has evidently appropriated several aspects of the originalist methodology, for example), but I am certainly no living constitutionalist, and I rather doubt that I am alone in that.
8.30.2005 3:24pm
SimonD (mail):
How can a "faithfull reading" of a clause which says "nor shall any State deprive any person of life, liberty, or property, without due process of law" produce a right to an abortion? The meaning of that clause, which derives from the same in the fith amendment, seems so clear to me. To extract a right to an abortion from it requires that horrid doctrine "substantive due process", the carefull parsing of the word "liberty" as guaranteeing substantive liberties in general, rather than liberty in the sense that you cannot be executed, imprisoned or fined without the due process of law. Now, that might be a reading of the text, but not a faithful one. If I were a great artist, and I undertook to recreate the apotheosis of washington, but I "corrected" a few things I didn't like in that painting (let's call them "defects"), such as I thought Neptune should have a beard more in the mode of Billy Gibbons rather than Santa Claus, then I might well produce a rendition of the apotheosis - but it would not be a faithfull rendition thereof, because I've found a way to make it closer to what I'd LIKE it to be.

Likewise, the living constitutionalist and substantive due process. It is a results-oriented reading of the text - what COULD this text do - rather than a faithful attempt at understanding the meaning of the text. And it's used because, if you want to find a right to an abortion in the constitution, that's the only place you could possibly peg it to. If you were going to go the other way, and find a right to life in the constitution, you'd have a little more wiggle room; you could peg it to the equal protection clause or to the due process clause. But this is the same rationale: it's going fishing in the constitution for text that could be made to sound ambigious enough to create a foothold. There is no constitutional provision prohibiting abortion or prohibiting its prohibition, and any attempt to show otherwise is results-oriented activism, as I said before, whether it's done by conservatives or liberals. I'm pro-life; I'd love it if we could peg right-to-life to equal protection. But we can't. It is a matter on which the federal constitution is silent, and per the 9th and 10th amendments (Randy's new essay notwithstanding), it's an issue for the people to deal with at the state leve.
8.30.2005 3:45pm
"do you know any originalists who subscribe to original intent? ANYONE?)"

One more time: most people, from Balkin to Scalia, argue that the original meaning is binding and that original intent is not. The source of the dispute is whether "original understanding" (as Scalia calls it) or "original application" or what have you is binding, or whether it is only the definitions of the words that are binding and their application can change in response to different factual knowledge, changed circumstances, etc. etc. etc.

Scalia argues that original application is part of original meaning; I say he is imputing original intent by the ratifiers to bind us to the initial application forever, without any evidence that this is what they intended.

I don't know what position Barnett takes on original application but when most people talk about originalism they are thinking of Scalia and Thomas.

And it is worth bearing in mind that this is only one of several central debates about Constitutional interpretation, the other main ones being when you should overturn a prior decision you think is wrong &when it should be upheld because it is settled law; and whether a purposive as well as literal reading of the text is permissible.
8.30.2005 3:48pm
frankcross (mail):
SimonD, there's no evidence that originalism or textualism constrains the judiciary. People shout it boldly, but the only empirical evidence is to the contrary. Originalism is just as manipulable as other arguments.

You can get abortion out of the 9th Amendment, if nowhere else.
8.30.2005 3:55pm
I fall, by the way, on the liberal sides of the main two debates: I think a purposive as well as literal interpretation is needed, and I do not think the original application is binding.

This does not mean I agree with every decision of the Warren Court.

Here (from a post six months ago on another weblog) is my attempt at dealing with the legitimate concerns about having a purposively interpreted "living constitution"*--four ways of constraining judicial discretion:

One is that, if you really can determine what the meaning-as-definition of the original term is, you are obligated to follow it.

The second is, if you're doing a purposive reading of the text, you have to be reasonably precise and specific about what purpose you're imputing, and where you're getting it from. You can't just say you read the whole Constitution and it clearly is meant to establish "liberty" or "individual rights" or "minority rights" or "democracy", and then go ahead and impose the decision that best protects "liberty" or "individual rights." Griswold is horrendously sloppy about this. There are other "emanations and penumbras" in Constitutional Law, but they arose because they were thought to be clearly implied from, or necessary to protect rights that were specifically protected--where it would make no sense to protect A and not B, or you can't really protect A without B. They were individually justified, case by case; there's not a general authorization to create an emanation or penumbra when you think it's convenient, and that's what it looks like he's doing. He talks about "the right to privacy" and the "right to be let alone"--but that's so vague that it tells you nothing useful about where this right came from or where it's going. What couldn't be included in a right "to be let alone"? What amendment couldn't be said to support it?

I do still think he's getting at something that you can make a real case is constitutionally protected--but let's leave that argument aside for now. The point is, as written it would be generous to say it comes out half baked. Douglas is sloppy and Goldberg is worse. The fact that they all agree that this right exists, but can't get their story straight on what it is or where it came from, here or in later cases, further undercuts their credibility.

Which brings me to the third thing: I think the reason the privacy decisions are such a mess and are so controversial is that rather than letting this "emanation and penumbra" be defined gradually over time from the logic of the cases that can stand on their own merits, they try to build it from scratch. It's very different from the way the first amendment "emanations and penumbras" have worked, and I think that's one of the major reasons why many of those first amendment cases(as far as free speech, not the religion clauses) are pretty widely accepted across the political spectrum and among all nine Supreme Court justices, whereas the "right to privacy" is not. The other reason, obviously, is that it touches on abortion and now also gay rights.

The fourth thing is, I think it's all right to consider and discuss changed circumstances explicitly, and this includes historical and social circumstances as well as technological change. But I think you should restrict to yourself to either:
1) historical facts or changes in knowledge that can be proved to be true, or reasonably close to it
2) matters of historical interpretation, understanding and morality about which there is a real social consensus.

By #1 I mean: the Brown court shouldn't have been citing those silly educational studies when it had no intention of confining its holding to education. There was plenty of hard historical evidence available which it could have used to show that in practice, separate never was equal, never was meant to be equal, and there was no way for courts to make it equal.

Note that when it comes to questions of scientific or historical proof, I don't think you need universal acceptance of those truths. Obviously people in the South would have argued strongly against the Brown Court deciding that separate was not equal and never meant to be equal. I still think it would've been legitimate for the court to consider the evidence. As far as current case law goes, I would be willing to assert that just as we now know that the snail darter is an endangered species even though we did not when the ESA passed, we now know that:

--sexual orientation is an immutable characteristic.
--a fertilized but unimplanted embryo is not a life.
--there is no scientific basis for teaching intelligent design in biology class,
--The state of Texas is imposing death sentences in a way that reflects the income of the accused much more than the severity of a crime, has executed people in cases where a preponderance of the evidence available at the time of death showed the likelihood of their innocence, and has executed people in cases where their attorney's failure to present mitigating evidence was probably decisive in the jury's decision to impose a death sentence.

By #2 I mean:
as far as historical interpretation:
--Americans share a common historical understanding that slavery, legal segregation, and the denial of voting rights to women and black people were immoral mistakes that should never be repeated.
--Americans share a common understanding that the policies of the Soviet Union, the Taliban, Communist China, and Nazi Germany are illegitimate and deeply immoral and to be avoided at all costs.
--Americans do not share a common historical understanding about the economic policies this country has pursued, in really any decade.
--Americans do not share a common historical understanding of the lessons of the Vietnam War.
as far as morality:
--there is no societal consensus that abortion is a right.
--there is no societal consensus that execution is cruel and unusual.
--there is a societal consensus that torture and the whipping post are cruel and unusual.

If it passes the test for either #1 OR #2, I think it's legitimate to treat it as a change in the circumstances that should be considered in applying the constitutional text, just as it is legitimate to treat the technological change in weaponry as a change in the circumstances that shouldc be considered in the interpretation of the constitutional text.

*in the narrow sense of believing that the original application is not binding, which I think is the crucial point of dispute in this debate. I do think original meaning, in the sense of definition, is binding. As far as the court decisions at the center of the argument, I think they fall into four categories: absolutely correct and long overdue (the free speech cases, many of the criminal procedure protections, and a lot of the equal protection case law once they got past the dumb sociological studies in Brown); correct in their outcome but poorly reasoned (Brown, Griswold, Lawrence); and actual overreaches (Roe, Miranda, Furman, the recent juvenile death penalty case--I do not consider all of these severe overreaches, and it is worth noting that I think the current court has overreachced just as badly in the opposite direction). I think the second category may be the largest.
8.30.2005 4:03pm

I don't think you could provide a more clear example of the sort of conceptual leap that I find very frustrating. You move from your view on the proper readings of "process" and "liberty" in the Due Process Clause to a claim that anyone who fails to share your view MUST be engaging in a "results-oriented" approach, rather than a faithful attempt to understand the text.

But surely you can see how your conclusion does not follow from your premises. At least to me, it seems obvious that two people could both faithfully try to understand the same text and still come to different conclusions about what it means. So the mere fact that some people disagree with you--or, if you prefer, the mere fact that some people reach the wrong conclusions about the meaning of the text--does not mean that those people are necessarily results-oriented.

This, of course, is an example of a much more general problem. When other people do not agree with a claim that we think is "clearly" right, rather than question whether matters are really as clear as we believe, we often prefer to simply accuse the other person of bad faith. I suppose that many people find such an assumption (that the other person is acting in bad faith) more comforting than the possibility that our own cherished beliefs may not be as obviously true as they seem to us. But I do find that tendency frustrating (in others, whether they agree with me or not, and in myself whenever I exhibit it).
8.30.2005 4:09pm
Richard Bellamy (mail):
Mr. Bellamy, I think you are confusing what Washington specifically did with being what the Founders neccessarily solely intended, when the intentions of the group are more relevant than an individual's uncontroversial and idiosyncratic actions on a single event.

I assume that the Founders were, generally, like lawyers everywhere, and when they wanted to write a document, they didn't sit down and start from scratch, they just stole parts of other documents. Mainly, they ripped off British statutes and state constitutions and pieces of the Articles of Confederation. It's easier that way.

Treaties were ratified by the "advice and consent" of the Senate because somewhere in the mists of time, British treaties got ratified by the "advice and consent" of Parliament. No one was really thinking about what the language actually "meant".

Similarly, they could right vague stuff about "due process" and "rights" and people generally knew what they were talking about, but I doubt anyone could have sat down and explained specifically what the words meant, or that any group of people would agree with any other one.

Federalists were writing stuff that they thought would pass muster with the anti-Federalists, but if you polled the two parties about what they were voting for, they probably would have given you very different answers.
8.30.2005 4:56pm
SimonD (mail):
I'm not sure what the point you're making here is. Again - Scalia, Thomas et al do NOT subscribe to Original intent. You said so yourself. And you're probably right that "when most people talk about originalism they are thinking of Scalia and Thomas". "[M]ost people, from Balkin to Scalia, argue that the original meaning is binding and that original intent is not."

The stare decisis argument, from my point of view, is very simple. If a case was decided with an argument which was nonoriginalist, but that result could still be sustained through an originalist analysis, then that case should stand. Brown falls into this category. If a ruling cannot be so sustained (let's be controversial and say Bush v. Gore), i.e. it cannot be reconciled against the text, structure, practise and original meaning of the constitution, then it should fall, no matter that "a veritable fairyland castle" (Minnick v. Mississipi) of practise has been built on that faulty judgement. In Brown, the court ruled that segregation was unconstitutional, just as in Pollock it ruled that the pre-16th amendment income tax was unconstitutional. In neither case did it pause to worry about how much carnage might result - the Court was compelled to the correct result and did not shy from it.

Incidentally, just as you don't agree with everything the Warren Court did, I don't agree with every opinion Scalia has authored, or every opinion Thomas has authored (and I certainly don't agree with everything Bork has written). For example, Scalia (in Tyler Pipe Industries, 483 U.S.) and Thomas and Thomas (Camps Newfound, 520 U.S.) have written opinions on the dormant commerce clause with which I totally disagree. See Brannon Demming, The Dormant Commerce Clause Doctrine and Constitutional Structure. I don't even - gasp! - (whisper it) agree with everything Randy's written. shhhhh....

Originalism is just as manipulable as other arguments.
To an extent, but I would argue that it is far better at restraining than any of the alternatives, and while no method is perfect, originalism remains, exactly as it was in 1989 or whenever Scalia gave that famous speech, "the lesser evil".
You can get abortion out of the 9th Amendment, if nowhere else.
No, you can't. This is what's troubling me about Randy's new essay, or one of the things, at least. You can get from the ninth amendment that the people retain the rights to decide, state-by-state, whether abortion should be legal within each state. What you can't find in it is a general right to abortion (or a general prohibition on abortion in favor of the right to life) within the 9th amendment. I'd be pleased as punch if you could, because as I mentioned before, I'm pro-life; it would be wonderfull if the constitution actually allowed the federal government to ban abortion, coast-to-coast, period. But it doesn't. "If you care passionately about something" is not the measure of its constitutionality.

I guess I just don't see how anyone could honestly conclude that substantive due process can be derived from a faithful reading of the due process clause. This isn't really a logical jump. I think there are clauses where two intelligent people can read the same text and reach different conclusions. Just this last term, in fact, we had numerous examples. Cf. Raich v. Gonzales (Scalia, J., concurring) and id. (Thomas, J., dissenting). Disagreement over the scope of necessary and proper clause. Or Granholm, where Scalia didn't write, but he and Thomas again split. I agreed with Thomas in the former, and Scalia in the latter, by the way - but I can see how they might reach different conclusions. And that's fair. There's scope for reasonable people to disagree when ambiguity exists - I just don't see such ambiguity in the due process clause.
8.30.2005 5:14pm
SimonD (mail):
Treaties were ratified by the "advice and consent" of the Senate

No, no, no...Haven't you heard? These days, treaties are ratified by the consent and citation of Justice Ginsburg...
8.30.2005 5:16pm
frankcross (mail):
You can argue that originalism is far better at constraining but there's no evidence for this. In fact, the evidence is to the contrary at the Supreme Court level, that originalism does not constrain at all.
8.30.2005 5:18pm
WHerndon (mail):
To put it simply, SimonD, I am not prepared to fully accept an empirical approach to determining the meaning of the Constitution.

Why? Several reasons. I think parts of the document are vague. The founders were by no means in full concurrence as to what each section or clause meant. There's a certain open-endedness.

Indeed, the Constitutional Convention did not mean to establish a fixed and comprehensive document covering all circumstances. This is quite evident from the debates surrounding the framing of the Constitution and the debate over state ratification. The fight between the Federalists and Republicans in the 1790s further muddied the waters.
Madison himself seemed to find a variety of meanings in the Constitution depending on the political context of the issue at hand.

Moreover, the early history and development of the courts and the Constitution do not provide a clear roadmap. Had John Marshall not been named as chief justice late in Adams' term, the Constitution certainly would have followed a very different path. Who knows if judicial review would even exist?

Earlier in my career as a journalist, I spent several years covering the Federal Reserve. Over time, I came to rely primarily on empirical date to determine my own views on the practice of monetary policy. And yet, I also concluded that central banking is an art in addition to a science. I believe the same is true in interpreting the Constitution.

Of course, allowing such individual discretion among justices gives life to a more subjective approach that you and I both disaprove. (Believe me, I have very little in common with Balkin. I find this article -- and most of his articles -- quite disingenuous).

What is to restrain judges? I am not sure. I recently listened to Scalia's speech and he is quite persuasive. The Constitution is indeed flexible.

On the other hand, I don't want to clutter up Constitution with a hundred amendments, were it even possible. In response Scalia would say persuade your fellow citizens to change the law.

By and large, I would agree that such a route is the proper way to go. (Indeed, I think the courts have no role to play in issues involving demand for new rights such as gay marriage). Yet the Constitution does protect some rights from legislative interference or majoritarian rule. And that raises the crucial question of which rights fall under that rubric.

Consider the right to privacy. I don't believe it explicitly exists in the Constitution. I reread Griswold recently -- I had last read the decision in college as part of a constitutional-law elective -- and I once again concluded that the dissenters were correct.

And yet, I do believe a general right to privacy is encompassed by the Constitution, though not in any one particular clause or section. I believe quite strongly that the government has no business outlawing the sale of contraceptives. I do not believe that such a decision is the purview of legislators or a majority of my fellow citizens. I think the right to use contraceptives, then and now, was an intrinic, indeed, a constitutional, right.

But again, I am stranded. I do not agree with the ruling in Griswold, as it was decided. I think the outcome, however, was necessary and proper. It's my fundamental right to use contraceptives so long as they harm no one.

How I get from one point to the other points to why I cannot fully abandon the idea of some organic development in constitutional interpretation in favor of a stricter originalist approach.

I wish I had a better answer. I don't. I dislike much of the activism of the "Brennan" court and would feel dutifully constrained if I were a justice. Yet I could not follow entirely in the footsteps of Antonin Scalia.

Try as I might, I simply cannot concoct an empirical approach that totally satisfies my concerns. Heck, I still have trouble figuring out why substantive due process is okay in economic matters but not in social issues. I am at a loss to understand why the 14th Amendment extends a variety of federal protections to people in the states, but not all of them (namely the right to bear arms). The logic of judicial tests such as strict or intermediate scrutiny also get me scratching my head (suffice to say I also disagree with Breyer about the utility of foreign law in the application of American jurisprudence).

I think the majority of Americans, who are less familiar with the workings of the court and Constitution, are also conflicted -- to the extent that they even think about it.
A few weeks ago, my older brother, an apolitical engineer, asked me about Roberts and his prospects for nomination. I quickly explained to him the competing views on the Constitution.

After I explained the basic premise behind the Living Constitution approach, he nodded his head and said it sounded sensible. Times have changed.

Then I explained to him the basic originalist point of view, and he nodded again. Judges couldn't just make up the law as they go along, he said.

I am a far more certain in my views, though not quite convinced. While I want to be persuaded by the likes of you, I like to hedge my bets. I have eight toes in the "originalist" camp, but I can't jump both feet in.
8.30.2005 5:22pm
SimonD (mail):
I should note a couple of things from Katherine's expanded text that I agree with. I agree that "if you really can determine what the meaning-as-definition of the original term is, you are obligated to follow it". I agree (from point 2) that the constitution "says" certain things that it does not "say"; the constitution does not specifically grant the Supreme Court the power to throw out statutes that conflict with the constitution. The court has that power, but it wasn't the invention of John Marshall; it was embedded, as Randy has argued, in the original understanding of the term "the judicial power". But I would point out that the only value in looking at either intent or practise - and this is why Scalia looks to application - is because, respectively, people do not usually choose words that are entirely inapposite to their purpose in writing the statute/constitution, and because what people do having ratified a constitution is a reasonably good marker of how they understood the constitution, and how they understood it is a reasonably good marker of what it meant. However, again respectively, I reject that courts should give flight to what they divine to be the "purpose" or "intent" of the people who wrote a statute (they should give effect to the text that was written and voted on), and early practise should not necessarily be considered binding. The congress that passed the 14th amendment is alleged by Balkin to have engaged in affirmative action; whether it did or didn't doesn't change the fact that the 14th amendment requires equal protection of the laws. Likewise, many of the same folks who voted for the first amendment voted for the sedition laws. So it's important to not place too much reliance on practise, beyond the weight it can stand.
8.30.2005 5:28pm
David M. Nieporent (www):
Medis: As I mentioned, this is the attitude which I find frustrating: that people who disagree on how to read something like the 14th cannot limit themselves to saying that the other person is reading it the wrong way, but instead must go on to accuse the other person of not even trying to be faithful to the text.

"Two plus two" might equal 3.9. It might equal 4.2. But a faithful reading of "two plus two" cannot get 17.
8.30.2005 6:16pm
SimonD (mail):
I must open with an incredibly important point. Substantive due process is NOT okay in an economic context. You write, "I still have trouble figuring out why substantive due process is okay in economic matters but not in social issues." It ISN'T okay in economic matters. Lochner was wrongly decided, and most originalists would agree with that point, reluctantly or not. The whole point, in fact, is quite the opposite: why do liberals contend that substantive due process is okay in social issues, when they still reject Lochner and its progeny? There is an intellectual inconsistency here, but it isn't in originalism. Substantive due process is nothing more than a veil to hide the naked policy-preferences-as-law of a bloc of Justices at a given time. Of course, the problem then is, the policy preferences of who's on the court become vitally important. Just you wait: if there were nine Janice Rogers Browns on the Supreme Court, every liberal would turn into a quasi-originalist, just like they do whenever the 2nd amendment is discussed.

The founders were by no means in full concurrence as to what each section or clause meant. There's a certain open-endedness.
Oh, I agree that there's always room for some interpretation. The difference of opinion between Thomas and Scalia in Raich was based on the scope of the interaction of "necessary and proper" and interstate commerce. I agree with Thomas' opinion, in that case, but I think Scalia's opinion is perfectly reasonable, and the move - which I never signed onto - to have him defrocked and excommunicated for reaching that result was rather silly. However:

On the other hand, I don't want to clutter up Constitution with a hundred amendments, were it even possible. In response Scalia would say persuade your fellow citizens to change the law.
I don't think that a whole slew of fresh amendments is what Scalia has in mind. I think his point is (and mine certainly is) that the constitution is entirely apt to modern times as it stands, even if we give it its original meaning. This is what particularly piques me about Balkin's article - he clearly believes that the constitution doesn't meet modern needs because it doesn't comport with liberal policy goals. That darned second amendment is a tricky one for people who want gun control! The failure of the constitution to ban abortion or the death penalty must be terrible for liberals, because it means that - were we to stick with the original meaning of the constitution - they have to debate them on the democratic stage state-by-state. Likewise, of course, originalism would be terrible for a certain section now ascedent within the GOP (I think you and I share the same party affiliation), because it would mean all these nice flagship "accomplishments" of the Bush administration like no child left behind would be rendered at a stroke unconstitutional. Heck, an originalist approach might well have placed Al Gore in the White House - which, for someone with my policy preferences and views on the constitution, would have been a terrible result. But to suggest, as Balkin does, that the constitution is some ancient pair of shackles is offensive and absurd. The constitution may or may not meet the desires of many sections of society, on either side of the partisan divide, but it certainly meets their needs more than adequately, and it is flexible enough to let all sorts of policy results be reached within its structure.

As regards a right to privacy and prophylactics, I stand by Hamilton in Federalist 84: the federal government has no power to invade those rights, and therefore you have the right to use them as far as the federal contitution is concerned. But the power to ban them is not withheld from state governments. If your state constitution grants so expansive a power to the state government as to permit them to regulate the sale of prophylactics, as Connecticut's evidently did, then the government can legitimately make such a law. The only kinds of law that a state government cannot legitimately make, in my views, are as follows: (a) laws that breach the state constitution, (b) laws that invade on power granted to the federal government, or (per incorporation) (c) laws that invade on a right guaranteed to individuals in the Constitution.

But this is not necessarily an unnecessary rigidity. Quite the contrary: "Every time the Supreme Court defines another right in the [Federal] Constitution it reduces the scope of democratic debate." If your state legislature is permitted to ban prophylactics, you can work to repeal that law, or to change the state constitution to remove their ability to do so, far more easily than the Federal government may do so. Suppose a certain brand of contraceptives came onto the market which carried with them very high risks of toxic shock syndrome, but which retailed for $0.01. Personally, I would be inclined to ban that product, because you know what will happen - the promiscuous poor will get (literlly) shafted. But wait! If the Supreme court of the United States has ruled that restrictions on selling prophylactics os unconstituonal (or, worse yet, if it actually IS unconstitutional), our hands are tied! But if we leave the question to each state, they can decide for themselves whether they want to be able to change the law overnight. This is a fairly absurd scenario I'm presenting, but the important point is that the Constitution does not create flexibility; it exists precisely to introduce rigidity. Why else do you think liberals want abortion to be a constitutional right anyway? The reduce the discretion of the state legislatures. Flexibility isn't the name of the game.

I'm going to assume you don't mean "the likes of you" in a negative sense. ;)
8.30.2005 6:22pm
WHerndon (mail):
Oops. On substantive due process, I mixed up the two. I meant to refer to how substantive due process is used in social matters (Roe) but not in economic matters (Lochner). Of course, I have a problem with substantive due process in general, and you summarize why.

You are right. I did not mean "the likes of you" in a negative manner. Just a figure of speech that perhaps I ought not to have used.
8.30.2005 6:35pm
Robert Schwartz (mail):
Kathleen wrote: "But originalists argue that we are not only bound by the words of the ratifiers, but by everything in their heads."

There are many theories of interpretation, and that is one. It is of course impossible to implement in a situation where the subjects have been worm food for two centuries, which leads me to believe that it is being advanced as a straw man, not as a serious argument.

There are private subjective meanings to every use of words, but since words are meant to communicate, both the speaker and the audience must consider the shared public meanings of words. Further, when we are considering words uttered in another time and place, and for a special purpose, we need to consider the context of the words in both history and purpose. E.g., is the right to bare arms a mere license to wear short sleeved shirts?

"The point about slavery is not that you're in the KKK if you're conservative."

You misunderstood my comment. It is the object of liberals to paint conservatives as racists. It is a canard and a slander. I know its not true, and you know its not true, but that does not stop liberal mouthpieces from from repeating it. It is very convenient to drag in at points where the mouthpiece has run out of arguments.

"It is this: when originalists talk about the "democratic legitimacy" conferred by the ratifying "supermajority"--it does not seem to be relevant at all to them that the supermajority was actually a pathetic minority of those who should have been allowed to vote."

It seems rather late to complain about procedures. Personally, I am rooting for the reestablishment of the 40 shilling freehold as a condition of franchise. But where do you take that idea. Is it a problem that Jimmy Carter didn't overlook the election? Are the diktats of 9 unelected old fools in black robes more legitimate?

"You don't have to dismiss the founders as nothing more than patriarchal slaveowning dead white oppressors, or whatever the stereotypical PC view is, to see that this raises very serious legitimacy problems for the Constitution."

One of the great things about being a conservative is not having to worry about this sort of conundrum. All liberal political theories begin by positing a creature that never existed -- a man who has no history. He and others just like him then set about negotiating the social contract. The liberal response to the question what about the next generation has never been satisfactory to anybody, including liberals.

Conservatives, OTOH, see the passage of time as a validation of an institution. The fact that the republic has endured is sufficient to me. The legitimacy problems you posit are an artifact of your theory.
8.30.2005 7:13pm
Again, Simon, the precise problem is that you are using your own views (about what the text means, or the degree to which it is ambiguous) as the gauge of whether someone else is being "honest" when they disagree with your views. I don't think it is profitable to repeat my objections to such an attitude, but you certainly haven't shown that such is not your attitude.

David N., it is worth noting that this is not math, but textual interpretation. Many texts are subject to not only some imprecision, but often entirely contradictory interpretations. And so it is not surprising that our Constitution is also subject to interpretations which will vary wildly from each other.
8.31.2005 12:09am
Tom Perkins (mail):
SimonD wrote,

"every liberal would turn into a quasi-originalist, just like they do whenever the 2nd amendment is discussed."

Liberals NEVER turn into any kind of originalist when the 2nd is discussed, unless you mean the theory invented in the 20th century that it protects a right of state governments. I don't see how that can be even quasi-originalist.

Yours, TDP, ml, msl, &pfpp
8.31.2005 7:53pm
Tom Perkins (mail):
"Heck, an originalist approach might well have placed Al Gore in the White House - which, for someone with my policy preferences and views on the constitution, would have been a terrible result."

I don't think it could have done. The "republican government" phrase (yes, I know it's a lower case R) and the 14th amendment do to my mind demand states have identical rules for considering the validity of ballots and chads. I have no doubt the largely Democrat counties of Florida would have kept on counting 'til they came up with the "right" numbers otherwise.

Yours, TDP, ml, msl, &pfpp
8.31.2005 7:58pm
Tom Perkins (mail):
Robert Schwartz wrote"

"The legitimacy problems you posit are an artifact of your theory."

And of course as the franchise became more general, any amendments thought neccessary could have been made. The presence and absence of such amendment confers such legitimacy. The evolution of the federal power outside the constitution destroys legitimacy.

Yours, TDP, ml, msl, &pfpp
8.31.2005 8:04pm
SimonD (mail):
Tom P:
Liberals NEVER turn into any kind of originalist when the 2nd is discussed
As Randy Barnett discusses at some length in Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, liberals do indeed turn into quasi-Originalists where the second amendment is concerned, attempting to legitimize clearly unconstitutional gun control measures by claiming (fallaciously, at best) that what the framers actually meant was that guns should be retained by the militia, or that gun ownership was a collective rather than individual right, and anything else they can dream up to say that opponents of gun control are misunderstanding the original intent (or understanding) of the second amendment. These arguments cannot be taken seriously, of course, but they are certainly made.

As regards Bush v. Gore, the equal protection clause does not speak to voting rights, and never has. Perhaps there is an alternative foundation on which Bush could be sustained? I'm certainly open to that proposition. Perhaps someone should write "The Originalist Case for Bush v. Gore".
8.31.2005 10:07pm
TDPerkins (mail):
I can agree they try to sound like they are making an originalist argument, but their arguments are so patently false that I can't call their arguments originalist. We'll have to agree to disagree.

"As regards Bush v. Gore, the equal protection clause does not speak to voting rights, and never has" Where does the constitution make an exception with regard to balloting?

Yours, TDP, ml, msl, &pfpp
8.31.2005 11:40pm
SimonD (mail):
We don't disagree, to the extent that I fully agree that "they try to sound like they are making an originalist argument, but their arguments are...patently false". To which I'd add facile, incoherent, inconsistent and likely disingenuous. This is why I say "quasi-originalist", to highlight that - while Balkin thinks that originalists turn to the living constitution in a pinch, the reality is that living constitutionalists turn to originalism when there's nothing else to hand. Unlike justices of the Supreme Court, even liberal academics don't have the cajones to make the argument that foreign precedent changes the meaning of the Constitution, which leaves them very little to play with - so they fall back on a bastardized form of originalism, while rejecting it in all other situations. Preposterous? Yes. Silly? Yes.

Regarding voting rights, if the equal protection clause had anything to say about the franchise, why the 15th, 19th, 23rd, 24th and 26th amendments to the constitution, all of which dealt with denial of the franchise? If we read the equal protection clause, through 21st century eyes, to speak to the franchise, then our reading runs contrary to a meaning that was widely understood to exclude the franchise, an understanding which runs from virtually the same moment in history as the 14th amendment all the way through the Warren Court, and into the third quarter of the 20th century. In other words, if we can't think of any reason the equal protection clause doesn't speak to the franchise, we need to think better and harder, because we are reaching a result that appears out of the clear blue sky. When text is unclear, we turn to structure and longstanding practise - neither of which support the franchise theory.
8.31.2005 11:52pm
TDPerkins (mail):
"Regarding voting rights, if the equal protection clause had anything to say about the franchise, why the 15th, 19th, 23rd, 24th and 26th amendments to the constitution, all of which dealt with denial of the franchise?"

Because the justices of the day were not willing to admit the text and the intent made those amendments unneccessary, and politicians felt compelled to usher other amendments to completion--hitting the courts upside the head with an axe handle.

"widely understood to exclude the franchise" widely since when? Since troops left the South and the entirely unconstitutional practices of the re-emergent white society became merely the enforced as opposed to the valid law?

A national political compromised was reached whereby the North ended the occupation and told the South, "We'll trust and not verify." As people growing up under such assumptions ascended into the judiciary, they eventually declared their prejudices constitutional, that couldn;t make them so.

An example, I don't recall the case name but in the early 1880's one of the courts declared segregation of schools unconstitutional and that stood, and I think Plessy vs. Ferguson happened in the 1890's. Plessy vs. Ferguson was an example, in practice, of a living constitution, not what the Constitution actually said.

Yours, TDP, ml, msl, &pfpp
9.1.2005 7:24am