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Franck v. Balkin on Originalism:

Over on NRO's Bench Memos, my co-blogger Matthew Franck, was quite dismissive of the idea that an originalist appraoch to constitutional interpretation was compatible with certain legal outcomes important to contemporary liberals and progressives, such as a constitutional right to abortion. Specifically, he wrote:

Perhaps I am being cynical, but this article (h/t Joe Knippenberg at NLT) in The New Republic by Douglas T. Kendall and James E. Ryan strikes me as a real hoot. Or maybe I am responding to the refreshingly candid cynicism of the authors, who think that Democrats can win the arguments over the Constitution—and elections, to the extent they turn on such arguments—by faking being originalists.

I don't know what other conclusion to draw from an article that uses, as its prominent example of progressive originalism, the recent "conversion" of Yale law professor Jack Balkin to "fidelity to the original meaning of the Constitution," proclaimed in the course of his arguing that the text and history of the Fourteenth Amendment support . . . the right to abortion.

The editors of TNR seem to have gotten the joke. They title the piece "Origin Myth." Who was it who said that sincerity is so important a political quality that politicians must learn to fake it?

Jack Balkin didn't get the joke.

Hey Matt, what's so funny? There's no fakery here. No insincerity either. Original meaning originalism just doesn't have the consequences you think it does.

There's now a bunch of folks who have studied the issues for some time . . . We've been thinking about constitutional text structure and history a lot. We're trying to be faithful to the Constitution. And guess what? We just disagree with you on reasoned grounds. . . .

Here's the point: we're not just making things up, any more than you are. (You wouldn't be twisting your readings of the Constitution to suit your politics, now would you? No, of course you wouldn't. That would be insincere.)

We just think you don't have a monopoly on constitutional fidelity.

Franck responds here (with a correction here), writing in part:

Readers can plow through the 70 pages of [Balkin's] "Abortion and Original Meaning" for themselves. My own view is that there is an astonishing results orientation to his arguments in this piece—an intensity of focus on an evidently desired outcome that is the antithesis of originalism, or indeed of constitutional jurisprudence properly understood (but I repeat myself). I do not question the "sincerity" of Balkin's claim to be an originalist. But the price of his professed commitment to originalism is a redefinition of the term that would make Humpty Dumpty proud.

Here is a statement central to Balkin's theoretical position: "The choice between original meaning and living constitutionalism . . . is a false choice." Many pages of the paper are devoted to collapsing the distinction between them—to showing that "fidelity to original meaning and belief in a living Constitution are not at odds." Balkin contrasts his approach, which he terms "original meaning," with the flawed originalism of Justice Scalia—and evidently nearly everyone else who normally claims the label—which Balkin calls "original expected application." (This is something of a straw man; a sounder form not so vulnerable to Balkin's argument might be called "originally foreseeable application." The framers did not "expect" railroads, but would have foreseen the application of the federal commerce power to them had they learned of them.) The framers of various constitutional principles, you see, had their own understanding of what the text means, but to the extent that their understanding conflicts with ours, we are free to reject their view and act on our own, saying "they expected it to apply in fashion A but we prefer fashion B." So far this is standard living Constitution stuff, straight out of the William Brennan playbook. Balkin's move—and in chess it would be akin to moving a rook diagonally—is to assert that when we substitute our view for the framers', we are nonetheless displaying "fidelity to original meaning," so long as some principle stated at a sufficiently high level of abstraction can be connected by even a single frayed thread to something the framers seem to have believed.

I do not question the sincerity of either party in this exchange. I am, however, quite wary of any theory of constitutional interpretation, originalist or otherwise, that dovetails too closely with an individual's policy preferences. A libertarian interpretation of the Constitution that replicates the political agenda of the Cato Institute, save for the federal postal service, is hard to take seriously. By the same token, a liberal theory of constitutional interpretation that neatly justifies most all of the New Deal and Warren Court innovations seems just a bit too convenient. So I would suggest that a reasonable threshold test of the seriousness of a given individual's avowed theory of constitutional interpretation is whether the theory produces any results to which the individual finds highly objectionable. If not, there may be reason to suspect that the theory is just a dressed up iteration of the individual's policy preferences.

UPDATE: Matthew Franck has more to say in a post titled Adler's Axiom. Of note, he offers a short list of issues on which his Constitutional conclusions and policy preferences diverge.

Following Franck's example, let me say that I agree with him on Kelo -- horrible policy but good law. I think federal power is more limited than Franck, and that the Court has some role to play here, but my read of the Constitution would hardly bring big government to an end. Additionally, there are many state and local laws that I find repugnant, but believe are constitutional nonetheless. I also support gay marriage and allowing open homosexuals in the military, but I don't believe that either policy preference is constitutionally compelled.

Jon Rowe (mail) (www):
I think Balkin clearly is right on this. I watched a video, available online, of Franck speaking to Robbie George's James Madison program at Princeton, Oct. 3, 2006.

Franck argued that when the Supreme Court is activist, it violates the Constitution. And towards the end said something along the lines of the Supreme Court violates the Constitution all the time every term, but he couldn't think of the last time Congress violated the Constitution.

Franck, like Scalia, believes in "democratic theory" where questions about the public good should be decided by "the people." Thus, Franck like Scalia wants the people to be able to determine whether post-New Deal big federal programs are acceptable.

The problem is the original expected application of the Commerce Clause's text and the limited enumeration of Congress' power would have the Framers believing much of what the Congress does under its post-New Deal understanding of constitutional powers to be unconstitutional.

So that everything Congress does when it builds upon post-New Deal Federal programs -- and it does so practically every day it's in session -- violates the Constitution according to the original expectated application of the Constitution's text.

If originalism can vet what Congress does on a daily basis using its post-New Deal understanding of congressional power, as Franck apparently thinks it can, then originalism can surely vet the right to abortion and sodomy as well.
8.9.2007 2:03pm
MacGuffin:
So I would suggest that a reasonable threshold test of the seriousness of a given individual's avowed theory of constitutional interpretation is whether the theory produces any results to which the individual finds highly objectionable.


See Balkin on the 2nd Amendment.
8.9.2007 2:06pm
CheckEnclosed (mail):
Originalism, seems to suffer many of the same vulnerabilities that plague legislative intent in general. The people at the Constitutional Convention knew that there would be no Constitution if it was not ratified. They had to write, therefore, not what was in their hearts, or what comported with their prior or later writings, but what would get enough votes to achieve ratification. The first pertinent question to ask about interpreting the Constitution is: "what did the words mean to those who ratified it?"
8.9.2007 2:43pm
Smokey:
The first pertinent question to ask about interpreting the Constitution is: "what did the words mean to those who ratified it?"
There. Fixed it for you.
8.9.2007 2:51pm
MacGuffin:
And the second pertinent question to ask is: How does that meaning apply to our current social context?

Balkin's progressive originalism professes to maintain fidelity to the best answer to the first question while not constraining answer to the second question to remain cabined within the applications expected by the ratifiers in their now distant social context.
8.9.2007 2:56pm
itshissong:
"The first pertinent question to ask about interpreting the Constitution is: "what did the words mean to those who ratified it?""

I take issue with this idea because, even assuming that we could know what the words meant to those who ratified it, who ratified it? The states, the people, the reps to the convention? Even further how can we get one expected meaning from tens, hundreds, or thousands, of ratifiers?
8.9.2007 3:07pm
MacGuffin:
What do you mean by "expected meaning"? As far as I can see, that isn't part of either Balkin's or Franck's contribution to the discussion thus far.
8.9.2007 3:15pm
Anderson (mail) (www):
I'm sure that if Franck's most respected originalist scholars issued a press release next week, declaring to an astounded world that they'd been wrong, and that Roe really *was* consistent with original intent ... then Franck would sigh, say "you can't argue with the theory because you don't like the results," and change his political position to pro-choice.

Very, very sure.
8.9.2007 3:17pm
frankcross (mail):
Well, it comes down to the proper level of abstraction to today. I'm not sure about Franck's personal position on the commander in chief power, but for many conservatives, it's exactly like Balkin on abortion. We must consider changed circumstances and adapt the constitutional language accordingly.

JA's ultimate request for sincerity is really a fairly mild one. I would ask for more than "any results" that the individual finds ideologically objectionable. One would expect that a truly neutral originalist would see a lot of such results.

Dworkin, for example, interprets the Constitution very liberally but acknowledges that it creates no positive rights, although he thinks it should. That's one example, but I'd like to see more.
8.9.2007 3:25pm
BGates (www):
Anderson, there are people who can distinguish between what the law is and what we would like it to be. If it's wrong to alter interpretation of the law to fit desired policy outcomes, it's just stupid to alter one's desired outcome based on interpretation of current law.

I don't think abolitionists claimed that slavery was unconstitutional in the early 19th century. Nor did they sigh and change their position to pro-slavery. Instead, they held true to their beliefs, and managed to get the Constitution amended to guarantee abortion rights. For in the words of the old Negro spiritual, "Free at last! Free at last! Thank God Almighty, I'm going to destroy this fetus!"
8.9.2007 3:32pm
bittern (mail):
"originally foreseeable application" is an approach defined by one example:

The framers did not "expect" railroads, but would have foreseen the application of the federal commerce power to them had they learned of them.

I don't know "originally foreseeable application" is supposed to differ from "original meaning," but the example given is written wrong, isn't it?
8.9.2007 3:40pm
CJColucci:
"I am, however, quite wary of any theory of constitutional interpretation, originalist or otherwise, that dovetails too closely with an individual's policy preferences."

Well, there goes the entire discipline.
8.9.2007 5:03pm
David Schraub (mail) (www):
Two thoughts:
So I would suggest that a reasonable threshold test of the seriousness of a given individual's avowed theory of constitutional interpretation is whether the theory produces any results to which the individual finds highly objectionable. If not, there may be reason to suspect that the theory is just a dressed up iteration of the individual's policy preferences.

I'd add to that the argument that these "objectionable" results can't just include upholding laws you dislike. If it's serious, it has to include striking down laws you dislike. This, I think, is a better test of constitutional commitment, because anybody can uphold a law they don't necessarily like just by citing the need to defer to democracy (which is really a case of two competing "extra-legal" value preferences). But it takes a bit more grit to grind your teeth and say "I like this bill, and I think it's good policy, but it violates this clause of the constitution, and thus I need to strike it down."

2)
I'm sure that if Franck's most respected originalist scholars issued a press release next week, declaring to an astounded world that they'd been wrong, and that Roe really *was* consistent with original intent ... then Franck would sigh, say "you can't argue with the theory because you don't like the results," and change his political position to pro-choice.

As it happens, I wrote an entire short story exploring this very scenario actually :-).
8.9.2007 5:29pm
anonVCfan:
So I would suggest that a reasonable threshold test of the seriousness of a given individual's avowed theory of constitutional interpretation is whether the theory produces any results to which the individual finds highly objectionable. If not, there may be reason to suspect that the theory is just a dressed up iteration of the individual's policy preferences.

It's a reasonable threshold test, but not much more, I think.

I think most people who have a coherent theory of the constitution are willing to concede a handful of issues. Balkin will let the 2nd amendment pass, but he gets abortion and a bunch of other stuff too. Scalia will allow flag burning and let a few criminals go, but he gets a lot of other things. In other words, take a loss in a single-digit percentage of cases, and you can claim that you're "principled."

What I have never seen is someone who is very serious about constitutional interpretation and yet thinks that the Constitution is more or less repugnant. (of the writing of which I'm aware, Levinson's comes closest to that) Conservatives have theories that get them conservative results most of the time, liberals have theories that get them liberal results most of the time, libertarians have theories that get them libertarian results most of the time, and they all claim that they're "objectively" right. It can't be just a coincidence.

Maybe it's because someone who honestly believes that the constitution is repugnant and difficult to fix has no real incentive to publish a bunch of articles to that effect. Maybe it's because the values that people select in choosing a theory of constitutional interpretation are some of the same values that drive their preferences for results. I don't know.

This isn't to say that everyone's a dishonest hack, but rather that there's something amiss about the way the debate is being conducted.
8.9.2007 6:14pm
Mark Field (mail):

I don't think abolitionists claimed that slavery was unconstitutional in the early 19th century.


There was a split in the abolitionist movement over this. Generally, the Garrisonians agreed that slavery was Constitutional (Garrison famously burned the Constitution in protest), while the Liberty Party developed a number of Constitutional arguments which would have allowed abolition of slavery (e.g., banning the interstate slave trade under the Commerce Clause).
8.9.2007 6:38pm
Dilan Esper (mail) (www):
I stopped taking doctrinaire conservatives at publications like National Review seriously on issues of constitutional interpretation a long time ago, with an exception only for those commentators (and I would include Professor Adler here) who show me that they are doing something other than spewing Republican talking points.

"Originalism" is both an interpretive philosophy and a political slogan. As a political slogan, it is used to bash on judges who come out with more "liberal" results as not caring about the meaning of the Constitution or following the law (when in fact they do), and the slogan is used by people who themselves deploy the tool selectively and really just want the results of the cases to come out a certain way. Further, many people who talk up "originalism" in conservative publications and media outlets haven't read the cases, have no idea if Ruth Ginsburg or John Paul Stevens have cited to original intent (they have), and have no idea that Scalia and Thomas sometimes ignore original intention when its implications don't suit them.

The truth is that originalist approaches can lead to liberal as well as conservative results, there are sometimes differences between different strains of originalism, like any enterprise that attempts to look back centuries, there are disputes as to what the original intentions, meanings, and expected applications were, and there are arguments against using originalism as the touchstone of constitutional interpretation, just as there are with any other constitutional theory.

But political conservatives at right-wing media outlets really aren't interested in that conversation at all. They just want to bash liberals for "disobeying the law", and insufficient fealty to framer's intent is a fine way to do it when the intended audience doesn't read judicial opinions anyway.
8.9.2007 7:21pm
CheckEnclosed (mail):
"I take issue with this idea because, even assuming that we could know what the words meant to those who ratified it, who ratified it? The states, the people, the reps to the convention? Even further how can we get one expected meaning from tens, hundreds, or thousands, of ratifiers?"

Actually part of the point is that the ratifiers were too numerous and their personal views to hard to disinter for us to do much of anything but take a default view that they understood the text the way literate humans of their time and place did -- which drifts closer to textualism. Of course, where we can show that words, phrases, or rules of grammar or meaning were different then than now, that context should be applied.

Things are different and perhaps more complicated when we deal with specific later amendments rather than the original Constitution. The reasons for the amendments, the people responsible for adopting them, and the information available varies.

More interestingly, ask what you would think about writing, explaining, or arguing for, some future amendment. Knowing the history of Constitutional law over the last two hundred years would you write/vote/argue on the assumption that interpretaion would be based on your personal intent and the tenor of your times, or would you try to express meaning that could be understood two hundred years later, based on what yous said or wrote, rather than what you intended? Madison, Hamilton &the like might have thought like that -- though without the benefit of our history/tradition of Constitutional law, it would have been harder.
8.9.2007 8:27pm
srp (mail):
The proposed test is not a good one for establishing the validity of an interpretive doctrine. It might be a good test for the sincerity of an advocate for a given doctrine, but that has nothing to do with the merits of the doctrine.

For example, suppose doctrine X entails conclusion A. If someone who doesn't like A nevertheless supoorts X, the Adler test counts that as a point for X. But now if someone who likes A joins in support of X, we're supposed to think less of X. That's perverse--convincing more people makes your view less plausible?
8.9.2007 9:57pm
Jim Rhoads (mail):
What is wrong as a matter of general Constitutional interpretation with the methodology espoused by Justice Marshall in M'Culloch?

It seems to me that most of the major arguments we are now batting around were described in great detail in the summary of briefs set out thoroughly in the case as reported.

Marshall spoke for a unanimous Court in 1819. Not much was done since which calls into question that Court's reasoning, has it?
8.9.2007 10:41pm
CJColucci:
Jim Rhoads:
Bingo! That is exactly why I've always thought the "originalism" debate was a tempest in a teapot. However you define originalism -- original intent originalism, original public meaning originalism, original expected application originalism, or what have you -- whole bunches of very serious people with much better claims than any of us to a grasp of what the Constitution "originally" meant seriously contested very basic issues and had serious arguments on their sides. Originalism of any sort is better than Just Making Shit Up, but it simply doesn't do the work its advocates want it to do.
8.10.2007 12:23pm