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Sandefur on Balkin:
On Positive Liberty, Tim Sandefur has a characteristically thoughtful response to Jack Balkin's Slate essay. Read the whole thing, but here is a taste:
The fact is, liberal talk of the "living" Constitution is not talk of a living Constitution at all, but talk of a dead Constitution—a Constitution whose clauses are to be manipulated, bent, stretched, or ignored outright so as to allow the regulatory welfare state to accomplish its aims. And if there are phrases like "herein granted" or "public use" (let alone "due process") that must be ignored in the process, why then, that's just fine. Is that living Constitutionalism? Or is it dead, null, and void Constitutionalism?
At a recent program at the Heritage Foundation, I heard Ed Meese make the exact same terminological point about a "living" versus "dead" Constitution, and it appealed to me then. It still does.
Medis:
I like almost that whole article EXCEPT that particular phrase ... why single out "liberals" when "conservatives" are also subject to the same criticism, even if they don't favor using the same metaphors?
8.30.2005 3:52pm
Shelby (mail):
Generally I've found Balkin's arguments to be serious, if (to me) unpersuasive. I was struck in reading the Slate article by how disingenuous it seemed, how unwilling to actually engage opposing views (rather than straw men). I've come to expect better from him.
8.30.2005 4:19pm
Jeff Licquia (mail) (www):
One minor historical mistake made by Balkin:


Independent federal agencies like the Federal Reserve Board... would all be unconstitutional under the original understanding of the Constitution.


Even under a paleo-Constitutional view, the Federal Reserve is perfectly safe. In point of fact, we had two Banks of the United States within the lifetimes of the Founding Fathers, and the charter of the first Bank was signed by none other than President Washington.

I have no idea whether the Founders would approve of the FCC or FTC, but I doubt that their objections would be based on the illegality of Federal institutions. Moreover, I'm a bit skeptical of claims from Balkin, given that he didn't get the Federal Reserve right.
8.30.2005 4:22pm
Hrm:
I confess that this just seems to me to be a semantic game. Although I acknowledge that semantic maneuvering has become a current self-righteous cause of the right -- see, e.g., "homicide bombers" -- I'm not sure it's a sensible one. Sure, a "dead" constitution may sound less appealing than a "living" one, but not by a wide margin. The living constitution is one that grows, changes, expands, contracts, according to its own biological dictates. "It's alive . . .!" presaged Frankenstein's monster, not Frankenstein's angel.

The conservative vision of the Constitution isn't of a living one; like any artificial creation, it is nonliving. It is a *standing* constitution -- as in, "the Constitution still stands!" -- and an *enduring* constitution, but it does not breathe, eat, and crap out bad law the way the liberal living constitution does.
8.30.2005 4:22pm
Shelby (mail):
Balkin has a post at his own blog here that says he's putting himself, for many purposes, in the same camp as Randy Barnett as a sort of originalist. That seems rather at odds with the Slate article.

I agree with Medis that invoking "liberal" and "conservative" detracts from this conversation. For that matter, "originalism" as a stand-alone term may be unhelpful (as is evident from Balkin's blog-post). I'm not sure what would be a better substitute, though.
8.30.2005 4:36pm
Daniel Chapman (mail):
You think "semantic manuvering" is a "self-righteous cause of the right?" Ever see the NYT railing against the use of the term "partial birth abortion?" Ever wonder exactly what a "somatic cell nuclear transfer" is? (AKA - "theraputic" cloning) How about "affirmative action" vs. "racial preferences"?

I was at a study session in my first year Constitutional Law class where a girl was listing off all of the substantive due process cases and what "fundamental rights" they protect. It looked like she almost swallowed her tongue saying "And Roe v. Wade guarantees the right to - a woman's right to choose." I thought about asking her "the right to choose what?" but I passed.

No... the fight over terminology is definitly not a "cause of the right." Phrasing the issue is half the battle. If we were the only ones to have figured that out, the left wouldn't exist anymore.
8.30.2005 4:36pm
Bill Dalasio (mail):
Hrm,

I'm inclined to say, though, that the term "living constitution" is itself an example of semantic manuvering. By citing the dichotomy as living versus dead, it makes the presupposition of an organic constitution as inevitable. My, admittedly limited, understanding of the debate is that originalism posits the constitution as a set of overriding principles subject to revision within the principles, but not fundamentally changing in nature over time. A fitting comparison would be if originalists termed the Constitution as enduring versus transient.
8.30.2005 6:03pm
Clayton E. Cramer (mail) (www):
A living constitution? No, a mutuating constitution. What started out as a gazelle is perilously close to the Martians in War of the Worlds.
8.30.2005 6:14pm
Shelby (mail):
a mutuating constitution

God Loves, Balkin Kills
8.30.2005 6:40pm
Bruce Wilder (www):
The Constitution guarantees equal protection of the law to all persons; when a conservative can come up with an application for that, other than appointing a President instead of counting votes, I will take their carping about constitutional interpretation more seriously.

Right now, this administration asserts that the President can "constitutionally" constitute kangaroo court tribunals, authorize torture and authorize indefinite detention without charge or trial. If you are not critizing whatever doctrine of constitutional interpretation supports that kind of total nonsense, you have no credibility as scholar or a citizen.
8.30.2005 6:51pm
Clayton E. Cramer (mail) (www):
The Constitution guarantees equal protection of the law to all persons; when a conservative can come up with an application for that, other than appointing a President instead of counting votes, I will take their carping about constitutional interpretation more seriously.
How about requiring concealed handgun licenses to be issued on some basis other than political connections and bribery? That's effectively how the current system works in California, and liberals get all huffy when you suggest that a system originally adopted for openly racist reasons, and that has racially disparate impact today, needs to be reformed.

Or how about requiring public universities to treat all applying students equally, regardless of race? Whoops! Another case where conservatives argue for equal protection of the law, and liberals usually argue for unequal treatment.

Right now, this administration asserts that the President can "constitutionally" constitute kangaroo court tribunals, authorize torture and authorize indefinite detention without charge or trial. If you are not critizing whatever doctrine of constitutional interpretation supports that kind of total nonsense, you have no credibility as scholar or a citizen.
Were military tribunals used to try enemy unlawful combatants during the Roosevelt Administration "kangaroo court tribunals"? Or are they only a bad idea when Republican Administrations use existing law and precedent?
8.30.2005 7:02pm
Nobody (mail):
This is semantics. It adds nothing to the debate.
8.30.2005 7:13pm
Shelby (mail):
This is semantics. It adds nothing to the debate.

Actually, to the extent that it really is semantics, I think it does add to the debate. However, most of it is really posturing, and THAT adds nothing.

"Living" vs "Dead" is really a rather poor analogy for modes of constitutional interpretation; that was also thrashed out on the prior Balkin-article-thread.
8.30.2005 7:34pm
Mitchell Herman (mail) (www):
The sad thing is that this debate is held primarily amongst scholars and lawyers.

Regrettably, as long as the masses get their cable TV they are both indifferent and ignorant of what the constitution actually says, let alone care much about how its interpreted.

Most of us brought up since the 60's were taught that the government was omnipotent and could do no wrong.

The expansion of government powers has become so common place as to no longer arouse any concern from the populace.
8.30.2005 7:43pm
Doc Rampage (mail) (www):
My favorite rhetorical stab in this area is: "a living constitution is a dying constitution".
8.30.2005 7:44pm
Justin (mail):
Clayton, two responses

1) On gun control - its hard to give a good 14th amendment argument to why concealed permits should be legalized for everyone (and, indeed, the easiest solution is to criminalize them for everyone)....and regardless, liberals do not blanketly, uniformly, or even primarily opposed licensed gun rights.

2) I think the original poster was looking for a conservative argument in favor of the original point of the 14th amendment - protecting underpriviliged minority rights, not overpriviliged majority rights. Without getting into the details of whether the Bakke line of cases were correctly decided, another example (or an argument against the premise) is needed to defend the right against the original poster's attack on conservative interpretation of the 14th amendment.
8.30.2005 8:18pm
Justin (mail):
Mitchell Hermann writes "The sad thing is that this debate is held primarily amongst scholars and lawyers.

Regrettably, as long as the masses get their cable TV they are both indifferent and ignorant of what the constitution actually says, let alone care much about how its interpreted.

Most of us brought up since the 60's were taught that the government was omnipotent and could do no wrong.

The expansion of government powers has become so common place as to no longer arouse any concern from the populace."

I've had this debate with my conservative friends in law school, and this always strikes me as the sort of misassumption conservatives make.

If you really, really, really got to a dead consititution, one that was unprepared for the modern administrative state, one supported only limited minority rights against the majority, one that really hampered the president's ability to use force or contravene international law (ah, the things originalists would love to ignore), etc, etc, people wouldn't just fall in love with the liberterian, state-centered originalist government. They'd either demand a new constitution, or more likely, demand judges that allowed the government to give them the things that a modern society provides its population (ie, the political response to the four horsemen).

In other words, if originalists abandoned hypocracy and REALLY wanted a full-blown, no-precedent, originalist, dead constitution, and got their way, the Constitution would truly be dead...much like the first four Republics of France. A constitutional convention designed to provide a more modern constitution would be called on, with those in power crafting one that assigned them all the powers they want.

In other words, "originalists" that are not originalists solely to achieve a political/ideological agenda (i.e. Scalia, whose brilliant btw), should be careful what they wish for.
8.30.2005 8:24pm
Gene Vilensky (mail) (www):
For a Conservative application of the Equal Protection clause, see Michael McConnell's contributed essay to Jack Balkin's book on Brown v. Board ("What Brown v. Board Should Have Said," I think is the title). It outlines the conservative case for the result in Brown.
8.30.2005 8:25pm
Daniel Chapman (mail):
"its hard to give a good 14th amendment argument to why concealed permits should be legalized for everyone"

I'd start with a due process incorporation argument if I had to try...
8.30.2005 8:26pm
Justin (mail):
PS I suggest that what Balkin is actually saying is in large part derived from the writings of Charles Black, and his lectures from Louisiana State (or Tulane, one of the two, I forget) are useful as to what he means by a living constitution and modern application.
8.30.2005 8:27pm
Justin (mail):
Daniel, you don't have to try, and the original poster specifically referred the equal protection clause, not the incorporation (implied?) or due process clauses.
8.30.2005 8:29pm
Daniel Chapman (mail):
I just read your post and had a partially snarky/sarcastic thought... I didn't go back and check the original post for context. It was more a comment on how far the 14th amendment has "evolved" than an argument in favor of incorporating the 2nd amendment.
8.30.2005 8:32pm
Justin (mail):
Gene, Jack Balkin responds to the problem with McConnell's response:

"McConnell correctly points out that many of the people who voted for the Fourteenth Amendment also voted for the school desegregation language in the 1875 Act, hence he concludes that this is evidence of what they intended in 1868.


The problem with McConnell's argument is that he must concede, as he does in his 1995 study, that at the time of the ratification of the Fourteenth Amendment, "school desegregation was deeply unpopular among whites, in both North and South, and school segregation was very commonly practiced." Indeed, McConnell contends that the Fourteenth Amendment, along with the Fifteenth, is virtually unique among amendments in the sense that it contradicted contemporary popular opinion rather than being consistent with it. As a result, he argues that the views of the actual ratifiers of the Fourteenth Amendment in the states-- who largely opposed school desegregation-- should be disregarded to the extent that they contradict the views of those framers who voted for school desegregation in subsequent debates over the 1875 Civil Rights Act in Congress. To put it mildly, this is a very controversial view about the Amendment process. Given the importance that originalists usually put on the ratification debates in the states, McConnell's argument, which rejects the views of the actual ratifiers of the Amendment, and which is based on what was, at the end of the day, a piece of legislation that failed in Congress, is not particularly persuasive."

(back to my thoughts)
If McConnell's argument is contraversial amongst conservatives, it cannot represent in this instance the conservative case for Brown, only the McConnell case for Brown.
8.30.2005 8:37pm
Eh Nonymous (mail) (www):
Apropos of "Nobody"'s comment:

"Every time someone puts the word 'mere' in front of the word 'semantic,' I bite my tongue and remind myself that I, too, am greatly ignorant." The beauty of that quote is that anyone invoking it is _not_ biting their tongue, but instead calling the other person an ignoramus.

Which, Nobody is.

Nobody: if the debate is not over the words and meaning of the words - and, indeed, the words of the meaning, and the meaning of the words of the meaning, viz. Semantics, then I'm not sure what it is about.

The debate is abstract, vaporous. To attempt to chain it with words, fence it round with meaning is all we can do.

If Balkin does not advance the debate, say so. But don't say "semantics." Say "empty rhetoric" or "mere bombast." Don't misuse words that have, you know, actual meanings.

As I always do, I encourage everyone to swing by my blawg and see what I posted just recently on Scalia and his view of the Living Constitution. Because I am nothing if not topical and timely. :)

Flames are welcome there; they will be doused. Possibly with something flammable. Personal emails will be thoughtfully considered. Impersonal emails are presumably spam, and are thus ignored.
8.30.2005 8:39pm
Clayton E. Cramer (mail) (www):
Justin writes:

1) On gun control - its hard to give a good 14th amendment argument to why concealed permits should be legalized for everyone (and, indeed, the easiest solution is to criminalize them for everyone)....and regardless, liberals do not blanketly, uniformly, or even primarily opposed licensed gun rights.
The protection of the Bill of Rights most often mentioned by proponents of the 14th Amendment during debate was...the right to keep and bear arms. The reason was simple: the Klan relied on state gun control laws to disarm freedmen, who were somewhat easier to intimidate when they weren't able to shoot back.

Even then, if you want to argue for a complete ban on issuance of concealed carry permits as a solution to the problem of equal protection being denied, fine, make that argument. But that's not what liberals argue for in places like California, where permits are available at the discretion of the sheriff or police chief--and are issued to liberals with long histories of violence, like Sean Penn.

2) I think the original poster was looking for a conservative argument in favor of the original point of the 14th amendment - protecting underpriviliged minority rights, not overpriviliged majority rights. Without getting into the details of whether the Bakke line of cases were correctly decided, another example (or an argument against the premise) is needed to defend the right against the original poster's attack on conservative interpretation of the 14th amendment.
I'm white. I grew up just below the poverty line. I wasn't able to finish my BA until I was 38, and my MA until I was 42. The vast majority of my tuition was paid for by me, and by private employers.

My wife is also white. She wasn't able to finish her BA until she was 34, and her MA until she was 37. The vast majority of her tuition was paid by me.

Overprivileged? Yeah, there might well be white people who are "overprivileged" but there's plenty of us for whom that really doesn't describe it.

Not every white person grew up rich, or even middle class, just like not every black person grew up in a ghetto. We are individuals; what may be true on the average for a race, or an ethnicity, or a gender, shouldn't be the basis for making decisions about individuals.
8.31.2005 12:26pm
Armen (mail) (www):
Anyone with a graduate degree claiming not to be overprivileged needs to invest in a dictionary instead.
8.31.2005 1:22pm
Thrax (mail):
Sandefur claims that it's inconsistent for Balkin to invoke (via Lincoln) the Declaration's "created equal," because he's "appealing to a pre-political, non-majoritarian standard of right and wrong." And why isn't he allowed to do that? He's taking a principle articulated in the Declaration (though not in the Constitution, except through "equal protection," which is substantially more indirect). Sandefur had just done the same thing a few paragraphs before, arguing that Loving was okay under originalism because it was consistent with the principle of equality. (Because "the principles have an existence aside from the particular practices of particular times, even of the founders themselves.") If that kind of approach is fine with Sandefur, it's hard to see what he's opposing.

Why wouldn't it be okay for the Wickard Court to say "the AAA is justified by the principle of a free flow of commerce between states which would be unduly hampered if Congress couldn't do this?" Why wouldn't it be okay for the Griswold Court to say "the principle of personal autonomy and protection of the individual against unwarranted state intrusion" justifies its decision? The Constitution has a million and three "principles"; if that's all you need, in Sandefur's view, he's as living a constitutionalist as I've ever found.
8.31.2005 3:35pm
Bruce Wilder (www):
Clayton E. Cramer takes my sarcasm too literally, I see. I don't see any application for the 14th amendment to gun permitting, but don't know much about the permitting process beyond the fact that the police pretty much automatically deny all permit applications.

Sandefur makes some excellent points, but undermines them all by his polemics. Apparently, only "liberals" offend him.

The first great decision of the court -- Marbury v. Madison -- and the one, which established the principle that the Courts can review the constitutionality of federal laws, thus making the whole discussion of how the Constitution is to be interpreted by the courts, operative, illustrates an important point about credibility and partisan interest. The decision of the court was in favor of Madison, the Democrat, and was delivered by Marshall, the Federalist.

The principle of judicial review is subject to the same kind of interpretative criticism frequently visited on the right of privacy. It is not explicitly spelled out in the Constitution's text; it is implied, perhaps, in the structure of the Constitution and in the legal history of the United States, but it is not in the text.

Marshall established the principle, in a case, arising out of a partisan dispute. He made his decision stick, by persuasive argument, and by accepting an outcome inconsistent with his immediate, partisan interests.

Sandefur could take a number of lessons from Marshall.
8.31.2005 9:19pm
Cyn23 (mail):
Why exactly the emphasis on a "regulatory welfare state?" The Constitution allows a "regultory state" of various sorts; it actually (using strict construction or whatever) allows a "regulatory welfare state" as well. The question is what sort.

Again, those darn libs also support "due process" -- if anything they want to stretch it like silly putty. The debate is also on the meaning of "public use."

Like a contorist, living things can be manipulated and stretched, allegedly or not.

If this paragraph is the gravamen of the argument, it's a pretty shallow one.
9.2.2005 8:35pm