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.
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.