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Balkin on Originalism:

Check out Jack Balkin's very interesting post on the implausibility of the Supreme Court adopting anything remotely resembling consistent originalism with regard to federalism (or anything else) any time in the near future. I agree with much of what Jack says, with two caveats: (1) if the Republican Party had shown a continued interest in federalism, I think Raich might have come out the other way. It's no coincidence, in my mind, that Lopez was decided just after the "Republican Revolution" of 1994, and no coincidence that Raich was decided when the Republican Party was no longer paying lip service to a limited federal government; (2) dominant political coalitions often win the Court for one point of view, only to find that this victory coincidentally came with some additional baggage. As Kevin McMahon has shown, the New Deal coalition's goal with regard to the Supreme Court was to eliminate virtually all restrictions on economic regulation at the federal, state, and local level. FDR achieved this by mainly appointing Justices from the demographic group least likely to object to regulation: northeastern liberals. FDR and many of his supporters had no particular interest in civil rights, but it turns out that northeastern liberals coincidentally also happened to be the demographic most sympathetic to civil rights. [Ilya Somin and I have shown that, along the same lines the Northern Republicans appointed by T.R. and Taft turned out to be unexpectedly at least mildly sympathetic to civil rights in the 1910s.] Similarly, the heart of the conservative coalition right now isn't especially interested in limiting federal power. But it's also true that the Justices most committed to the main conservative agenda are also interested in federalism: Scalia (at least until Raich), Thomas, and Rehnquist have been the most consistent votes in favor of the conservative agenda, but also for limiting federal power. O'Connor and Kennedy were less consistent on both matrices. If you appoint very conservative judges who satisfy core Republican constituencies, these Justices are also more likely to vote for a more originalist view of federal power, not least because the impractical pointy-headed intellectual legal wing of the party almost universally believes that at least some aspects of the New Deal expansion of federal power were illegitimate, and this filters into the worldview of the Thomases, Alitos, et al. of the world. [And an additional caveat: unlike Jack, I'm not persuaded that Big Business, as a rule, favors Republicans more than Democrats; the core of the Republican Party seems to me to be evangelical Christians, military folk, and the Chamber of Commerce.]

But am I optimistic that the "federalism revolution" will be revived? No, at least not until the Republican Party signifies that it would provide some political support/cover for such a move.

Related Posts (on one page):

  1. Balkin on Originalism:
  2. Originalism in Crisis:
Gordon (mail):

Thomas, and Rehnquist have been the most consistent votes in favor of the conservative agenda, but also for limiting federal power. O'Connor and Kennedy were less consistent on both matrices.


What cases do you have in mind re: O'Connor? Admittedly she was part of the concurring opinion on Lopez, but to balance out she wrote New York v. United States and even dissented in South Dakota v. United States. She was one of the most consistent federalists on the Court, and it is arguable that Alito may in fact be less of a federalist than she is/was.
11.7.2005 2:15pm
Steven:
I'm puzzled by your seeming admission in your Caveat #1 that external political factors play such an important role in the Court's decisionmaking. Are you saying that the conservatives on the Court would have been more faithfully conservative but for the failures of the political conservatives?
11.7.2005 2:30pm
DavidBernstein (mail):
Steven, why puzzled? I think it's almost self-evidenct, not to mention a standard theme in political science literature on the Court.
11.7.2005 2:35pm
Bob Bobstein (mail):
I just came to the comments section to say that I'm puzzled about your comment that "It's no coincidence, in my mind, that Lopez was decided just after the "Republican Revolution" of 1994, and no coincidence that Raich was decided when the Republican Party was no longer paying lip service to a limited federal government." But you say it's self-evident in response to Steven.

So the SC reads not only the election returns, but the party platforms and agenda items? I studied Poli Sci in college and learned more than anyone should about critical legal theory in law school, and even I'm not that cynical. Can you help with a pointer to some background info on this? Does it apply to cutting-edge Constitutional issues more than anything else?
11.7.2005 2:51pm
SimonD (www):
Balkin previously asserted that "[n]obody, and I mean nobody, whether Democrat or Republican, really wants to live under the Constitution according to the original understanding;" I've been forced to the conclusion that he simply can't be taken seriously on this subject, and this silly huffing and puffing - asserting that originalism won't work because big business doesn't want it, which is a marked step back from "nobody" - isn't doing anything to change my opinion of him.

Balkin doesn't like originalism, and is out to discredit it by any means possible - credible or otherwise.
11.7.2005 3:02pm
DavidBernstein (mail):
Maybe someone else has the poli sci cites at their fingertips, but offhand I can recommend two recent books by law professors that take the poli sci literature into account: Powe's The Warren Court and American Politics and Klarman's From Jim Crow to Civil Rights. Basically, it's an error to see the Court as completely autonomously acting based on law, and ignoring social, economic, and political trends. Just consider how implausible Lawrence v. Texas would have been in 1965, with a much more "liberal" court.
11.7.2005 3:03pm
Richard Bellamy (mail):
"no coincidence that Raich was decided when the Republican Party was no longer paying lip service to a limited federal government."

It is certainly "self-evidently true" that if the Republicans were paying more than lip service to limited federal government, there would have been no case or controversy to resolve here!
11.7.2005 3:28pm
Steven:
I guess my puzzlement is the open acceptance by you, who I believe to be a proponent of "originalism", that Supreme Court decisions are inevitably influenced by current political and cultural factors. This strikes me as the very objection that most originalist/textualists make to the "Living Constitution" movement. How do you reconcile what seem to be opposing views?
11.7.2005 3:31pm
DavidBernstein (mail):
I don't confuse "is" and "ought."
11.7.2005 3:34pm
Justin (mail):
SimonD: the original understanding of the Constitution would have invalidated the regulatory state. What do you think the opinion polls would be on a bill that eliminated the regulatory state (along with the SSA, most of the Cabinet and their powers, Medicare, Medicaid).

The war in Iraq would also be unconstitutional (in violation of Congress's authority to declare war, and the meaninglessness of a joint declaration). What percentage of the people who supported a bill that accomplished A above would also support the Supreme Court unilaterally recalling our troops from Iraq?

Okay, moving on...
11.7.2005 3:58pm
Wintermute (www):
Wasn't there a statement from a Supreme Court Justice saying they read the newspapers too? The Court has to maintain respect for its judgments, and such respect is given or withheld in significant measure according to the tenor of the times. Restraining Congressional acts is especially risky; Justices must retain 1/3 + 1 votes of Senators present -- more, to avoid embarassment. Alito substituted may help constrain the Commerce Clause, but I expect the Court's efforts to be as incremental as possible.

Is anyone else wondering why cert was just denied in the transsexual employee case? Bad facts?
11.7.2005 4:20pm
Richard Bellamy (mail):
To give the S.Ct. some credit, there also is value to "judicial incrementalism", cleaving strongly to past precedents while you inch closer to your "ideal" constitutional vision.

Having a finger in the political wind would tell you how big an increment you can reasonably take. Sometimes, opinions reached over decades last longer than those reached over years.
11.7.2005 4:40pm
Alan (mail):
David,
Originalist "Federalism" consistently applied would mean that the lines of authority between the states and the federal government would be bilaterally re-balanced - the Federal government would certainly be cut back, but so would the states. Politicians are not interested in a true bilateral re-balance. For example, if orginalism were consistently applied, the 11th Amendment cases (e.g., Seminole Tribe) would certainly come out differently - and in a way that is not supported by the current Republican Party. Raich in part involves the federalization of criminal law, which the Republican Party also supports.
11.7.2005 4:53pm
SimonD (www):
Justin,
I think it's going a little too far to suggest that the modern state is fundamentally incompatible with the original understanding of the Constitution (which isn't to say that the modern state would survive a reversion to the original understanding entirely as it currently exists, which I don't think is necessarily a bad thing), and I'm not sure why you feel it's a bad thing to require a formal declaration of war from Congress prior to non-emergency military action. But even if we were to grant these points to you, you are arguing against the original understanding by saying "look how terrible these outcomes would be." But this is results-oriented; why is your point any different to Bush selling Harriet Miers based on a shopping list of precedents she would vote to overturn?

What's your alternative? What's this other, coherent and intelligible principle of interpretation that presumably you and Jack have in mind as an alternative to originalism? Living documentarianism? I think most people here can come up with a far worse parade of horrible consequences for that than you offer up for originalism.

Just saying that originalism might disrupt some aspects of the modern state is hardly a credible criticism. It fails to displace the bedrock benefits of that methodology, and does little to establish any serious concerns about it.
11.7.2005 5:01pm
SimonD (www):
I agree with Alan's post above, by the way, although I'm assuming he also sees those outcomes as desirable.
11.7.2005 5:03pm
SimonD (www):
I was looking for this quote to close the post before last, but couldn't find it...I was going to say:
"I do not think ...that the avoidance of unhappy consequences is adequate basis for interpreting a text." -Justice Antonin Scalia, Nixon v. Missouri Municipal League et al., 541 U.S. ___ (2004)
11.7.2005 5:05pm
Alan (mail):
SimonD,
I am not sure which "outcomes" you refer to in your post referencing my post. I think it would be good to interpret the 11th Am., as it was written/intended, not as it has been applied. As to the federalization of criminal law -- it depends -- drug trafficing certainly affects commerce among the several states; possessing a gun within 100 yards of a school does not.
11.7.2005 5:12pm
Steven:
Back to Balkin's main point, which I think is summarized by this sentence:


A return to a federal government of "limited and enumerated powers," or a return to "the original understanding," or to the "Constitution in Exile," or whatever you want to call it, just isn't going to happen, because the national political coalition and its most powerful political constituents don't want it to.


I take it from David's post that he concedes this point, with his stated caveats which don't seem to undercut the point Balkin is making. If so, doesn't that leave originalism in exactly the predicament that David decried a couple days ago:


[S]imply pulling a Scalia, and begging off from the tough issues as distractions from what I beleive he sees as the real task of preventing the liberal elite from enacting its agenda through the judiciary just won't do. Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That's culture war politics, not originalism, and Scalia's failure to identify any theory of originalism that justified his opinion in Raich dramatically lowered my estimation of him as a jurist.



And if true, doesn't that also suggest that, while originalism can have some effects on the margin, its true value is in the "convenience" of pulling it out to justify a particular result?
11.7.2005 5:33pm
frankcross (mail):

"I do not think ...that the avoidance of unhappy consequences is adequate basis for interpreting a text." -Justice Antonin Scalia, Nixon v. Missouri Municipal League et al., 541 U.S. ___ (2004)


There's the rub. I think its an extremely good basis for interpreting a text. And so does Scalia, as is evident in both constitutional and statutory opinions. He's disregarded the text of the FTC Act on tobacco regulation and certainly disregarded the text of the 11th Amendment to further his federalism aims.
11.7.2005 5:50pm
Brett Bellmore (mail):
As a practical matter we're not going to return to following an honest reading of this Constitution. But it still remains important to discredit living constitutionalism, because this constitution is inevitably going to be followed by another, and if THAT constitution is to have the slightest chance, it has to at least start out being honestly interpreted. Which it won't be, if modern techniques of "interpretation" are regarded as legitimate.
11.7.2005 5:52pm
go vols (mail):
Regarding cites on politics and the Supreme Court:

The American Supreme Court
, David McClosky and Sanford Levinson

The Supreme Court and the Attitudinal Model, Segal and Spaeth

The former is historical and well-written; the latter is quantitative and less exciting. Both are extremely important.
11.7.2005 7:16pm
Oh my word:
I think Balkin's right. Moreover, I am skeptical that there is an articulable set of rules that can interpret the ICC. The "substantial effect" test is way too squishy to be a reliable, bright-line test and basically cries out to be applied in a haphazard and political manner, depending on the judge's beliefs. These rules have to be not only applied with regularity by the Supreme Court, but also the district and appellate courts. Unless there is a far better set of tests that can be acceptable and reliably applied, the Court won't get into a very hairy and potentially catastrophic war with the Congress. The institution of the Supreme Court is already under such fire as it is right now.

It's up to the Congress and the President to refrain from passing unconstitutional laws. That ain't gonna happen, of course, but it has to be a political process federalism or nothing at all.

It's a lot easier for the Court to strike down state statutes, which it does with all the thousands of 14th Amendment rulings, because there are no checks and balances, so it can be activist with much less risk to the institution.
11.7.2005 7:45pm
Robert Schwartz (mail):
So if all of you liberals think that the original understanding won't work, why don't you propose amendments to the Constituiton so that it will say the things you really believe, and eliminate the arguments of the originalists forever. Or don't you think you could get it passed?
11.7.2005 9:50pm
Sebastianguy99 (mail):
"So if all of you liberals think that the original understanding won't work, why don't you propose amendments to the Constituiton so that it will say the things you really believe, and eliminate the arguments of the originalists forever. Or don't you think you could get it passed?"

There's no need to amend, there is widespread acceptance of the New Deal and the regulatory state. I think the attempt to "reform" Social Security is but one very prominent example. The same with child labor laws, environmental laws, civil rights, etc..

Conservatives understand this too; that is why they hide their true agenda behind Orwellian langauage. This is also why conservatives haven't pushed for an amendment banning abortion, or any other treasured issue.Professor Balkin does an excellent job at showing why this is the case.

This is the true purpose behind the entire "originalism" movement as it is today. Their rhetoric aside, conservatives understand that they need to effect by judical fiat what they cannot do otherwise.

So it is to conservatives, not the liberals,that you should direct your question.
11.8.2005 1:29am
Harpo:
"The Karaites believed in strict interpretation of the literal text of the scripture, without rabbinical interpretation.They believed that rabbinical law was not part of an oral tradition that had been handed down from G-d, nor was it inspired by G-d, but was an original work of the sages. As such, rabbinical teachings are subject to the flaws of any document written by mere mortals.

The Karaites noted that the Bible specifically prohibits lighting a flame on the Sabbath, so they kept their houses dark on the sabbath. The Rabbanites, on the other hand, relied upon rabbinical interpretation that allowed us to leave burning a flame that was ignited before the sabbath."

http://www.jewishvirtuallibrary.org
/jsource/Judaism/Karaites.html


Interesting similarities.
11.8.2005 2:24am
Brett Bellmore (mail):
Here's a proposal: If the legitimacy of the "living" Constitution really rests on supposed widespread acceptance, and formal amendment is just a trivial redundancy in the case of something the public already embraces, then if amendments are drafted making formal the "changes" that took place over the last seven decads, and rejected by the states, that ought to be sufficient basis for the Court to be required to abandon them, right?

In reality, the reason all those "changes" were done the way they were, was that in every case an amendment would have failed. You don't use explosives to open a safe if you've got the combination. Flexible "interpretation" is constitutional safecracking, nothing more. A way of making changes that wouldn't be accepted by the people whose permission is needed for REAL amendments.

And anyone who thinks otherwise would have absolutely no objection to my proposal above.
11.8.2005 5:52am
Brett Bellmore (mail):
Yes, Harpo, but the chief difference is that scripture has to be treated that way because there *isn't* a procedure for changing the actual text... The only way to make needed changes is sophistry. Whereas the Constitution can be amended any time there's actual support for doing so. It's not the originalists who treat the Constitution like scripture, it's their opponents.
11.8.2005 5:55am
Bob Bobstein (mail):
To get back to what was discussed above...
"if the Republican Party had shown a continued interest in federalism, I think Raich might have come out the other way." "Just consider how implausible Lawrence v. Texas would have been in 1965, with a much more "liberal" court."

Agreed that the SC responds to external factors to some extent.

But there is a big difference between the changing attitudes towards gays over the 40-year period mentioned above, and the public's attitude towards federalism. Even if Repub standard-bearers gave speeches on the need to shrink the fed gov every week, there is no empirical evidence for the idea that these notions would resonate-- certainly not to the extent necessary to shape the SC's decisions. Very very few people-- and about 2% of elected officials in DC-- care about federalism more than they care about the policy outcome on any given issue.

An identical view is often heard from the left wing of the Democratic Party-- "if only the party had held onto its core convictions, we'd have (expansive program x) by now."

But advocacy of federalism and European-style social programs just does not resonate in the US.
11.8.2005 9:14am
Robert Schwartz (mail):
Brett Bellmore has it right.

The answer to "Sebastianguy99" is either:

a) have we been introduced? If you don't know me. how do you know what my "true agenda" is? or

b) tu quoc. Liberals true agenda is to impose an alien lifestyle on Americans with out their consent through a judicial coup-d'etat.

Take your pick.
11.8.2005 12:57pm
Sebastianguy99 (mail):
"...If the legitimacy of the "living" Constitution really rests on supposed widespread acceptance, and formal amendment is just a trivial redundancy in the case of something the public already embraces..."


I have not read any of the comments to say that there was anything 'trivial" about the Constitution or the interpretation of the Constitution. It is entirely rational to infer acceptance of the public from their lack of desire for change. I think we would do well to remember that the powers to govern do not come from the words of the text, or the structure of the government, that power comes from the people.

Most citizens do not think in terms of "federalism and European-style social programs", they want to know if their lives will change for better or worse. They think in terms of jobs, security, retirement, etc..
11.8.2005 1:01pm