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Balkin & Franck on Originalism -- Whelan Weighs In:

Over at NRO's Bench Memos, Ed Whelan weighs in on the discussion between Matthew Franck and Jack Balkin on originalism and abortion with a series of three posts. The first post offers a brief summary of Balkin's argument, as Whelan sees it. This post also notes this paper by Michael Rappaport and John McGinnis critiquing Balkin's arguments. The second post draws out the distinction between Balkin's approach to original meaning and that endorsed by Justice Scalia (for whom Whelan clerked). The third post focuses on Balkin's interpretation of the equal protection clause, which provides the basis for Balkin's argument that the original meaning of the Constitution protects abortion rights. As readers might expect, Whelan and Balkin disagree.

Mr. Impressive (mail):
Given Mr. Whelan's rather extreme partisanship as expressed on Bench Memos, I must admit to not taking his views all that seriously. He is no Eugene Volokh.
8.14.2007 3:59pm
Daniel Chapman (mail):
I can understand why someone would not take a particular writer seriously... there are several I don't respect all that much myself. But why do people feel the need to tell everyone? It's especially annoying considering how often the Pot is merely calling the Kettle black.
8.14.2007 4:13pm
Mr. Impressive (mail):
Mr. Chapman,

Why should this opinion, as opposed to other opinions, be supressed?

In fact, I am fine with people thinking that other people should not express their opinion on certain subjects. As long as they keep that opinion to themselves. =)
8.14.2007 4:25pm
Daniel Chapman (mail):
"suppressed?" Just because you have the right to speak your mind doesn't mean you always should.
8.14.2007 4:27pm
Mr. Impressive (mail):
You still aren't answering the question. Why shouldn't that opinion be expressed as opposed to other opinions.
8.14.2007 4:30pm
Daniel Chapman (mail):
Good manners? I won't go so far as to call it trolling, but it seems to come close.
8.14.2007 4:35pm
David M. Nieporent (www):
Because it's worthless. You've told us nothing; you've provided less than a Monty Python Argument Clinic argument. You don't even make the definitive statement "Is not"; you simply announce that you don't like the speaker so you're not going to pay attention to him. But why should anybody care?
8.14.2007 4:39pm
Mr. Impressive (mail):
Ed Whelan voluntarily decided to inject his opinions into public affairs with highly partisan statements.

I do not think saying that he should not be taken seriously because he is overly partisan is bad manners.
8.14.2007 4:40pm
Mr. Impressive (mail):
David M. Nieporent,

Whether someone is more suspicious of analysis coming from a highly partisan individual is up to them. I am not saying that you should care. At the same time, I am sure that some people would care.

And I did in fact say include a substantive and true fact. Ed Whelan has made highly partisan statements over at Bench Memos. This is a true and verifiable fact. So, contrary to your assertion, I did tell you something. Something that not everyone reading this blog would know.
8.14.2007 4:43pm
Daniel Chapman (mail):
You wouldn't would you? That doesn't surprise me after reading other stuff you've posted here. My first comment was about posts like yours in general. Responding to an article with "He's a hack" is an ad-hominem that adds nothing to the conversation, and it's doubly annoying considering the "partisanship" of the people who generally make those accusations in comment threads.

Short version: Your accusation says more about you than it does about Whelan.
8.14.2007 4:45pm
Mr. Impressive (mail):
It is interesting that you would think that my recitation of a true and verifiable fact about things said by Ed Whelan over at Bench Memos says more about me than it does about him.
8.14.2007 4:47pm
PaulK:
The main problem with Balkin's reasoning (based on Whalen's summary) seems to be that abortion laws are not the kind of "class legislation" he claims they are. A law prohibiting abortions prohibits anyone from procuring one -- the fact that only women carry children is largely beside the point, being merely a biological fact that we can't change. Just because the application of a law does not touch upon certain members of society because of accidents of nature (or for other reasons unrelated to the content of the law) does not mean the law in question is artificially creating "classes" or "castes" in society.

If this were the case, we would have to question, for instance, traffic laws (which "unfairly" bind only those people physically capable of driving automobiles), compulsory education laws (which likewise bind only those people with children), and perhaps even the widespread and legally important distinctions between minors and adults (which, after all, discriminate between people based on the biological accident of age).

The law should not be in the business of creating distinctions between people where none exist -- but arguing that it cannot account for distinctions that actually have a legitimate a priori existence is just silly. And just to head off one foreseeable line of counterargument, one cannot effectively claim that no legitimate distinctions exist between men and women, as the entire crux of the disputed argument (Balkin's) is that only women become pregnant; the fundamental premise of his conclusion is that there is such a legitimate a priori distinction.
8.14.2007 4:56pm
Jonathan H. Adler (mail) (www):
"Mr. Impressive" --

Whether you agree with them or not, Ed Whelan's posts on Balkin are quite substantive. I would think you are capable of evaluating Ed Whelan's arguments on their merits, irrespective of the other, more "partisan" comments you believe he has made in other contexts.

JHA
8.14.2007 5:02pm
Mr. Impressive (mail):

Just because the application of a law does not touch upon certain members of society because of accidents of nature (or for other reasons unrelated to the content of the law) does not mean the law in question is artificially creating "classes" or "castes" in society.


So, if the application of a law treats people differently based on the melanin content of their skin, it is not creating "classes" or "castes." After all, melanin content is just an accident of nature.

I think your confused when it comes to your abstract conclusions. Race, like the capacity to give birth, is a biological accident, after all.
8.14.2007 5:07pm
Mr. Impressive (mail):
Mr. Adler,

You are correct that I am capable of evaluating his arguments. However, that I am capable of evaluating his arguments does not mean that I should do so. There are countless substantive writings in existence that I would be interested in reading and evaluating. I cannot read them all. I must make a decision concerning how to allocate my scarce reading time.

In making this decision to allocate scarce time to reading someone or not, I think that whether someone is highly partisan is quite relevant. Probabilistically speaking, partisan individuals tend to load the dice in their arguments.

Performing a cost/benefit analysis, I am making an ex ante prediction that the opportunity cost of reading Mr. Whelans arguments exceeds the benefits. I am basing this ex ante judgment on his history of overly partisan rhetoric.

Of course, an ex ante judgment may be incorrect ex post. It may turn out that something that you ex ante judged to not worth the time to read, would in fact better to read than all the alternatives competing for your scarce time. Fine. This is unavoidable in a world of imperfect information. We have no choice but to make ex ante judgments.

In making an ex ante judgment about whether to take a persons argument seriously or not (i.e. decide they are worth consuming scarce time reading and thinking about) it makes sense to consider whether that person is extremely partisan or not.
8.14.2007 5:18pm
David M. Nieporent (www):
In making this decision to allocate scarce time to reading someone or not, I think that whether someone is highly partisan is quite relevant. Probabilistically speaking, partisan individuals tend to load the dice in their arguments.
But you're highly partisan, so by your own logic, you're not worth reading. So shouldn't you stop posting and wasting everyone's "scarce time"?
8.14.2007 5:19pm
Jon Rowe (mail) (www):
I think there is a legitimate debate going on here.

One note on Whelan's post which references Rappaport's and McGinnis' critique of Balkin:


[His] article has great strategic value [for opponents of conservative originalists]: it attempts to appropriate for the living constitution philosophy the intellectual capital and public respectability that originalism has earned recently in the academy as well as the wider world.


If that's the way they want to see it fine. Though, I don't entirely agree with Balkin's approach to constitutional law, I value his approach in this debate in that it answers the arrogance I've seen coming from folks like Bork that their theory represents "the actual Constitution" (what I've heard him say) and the more liberal approaches something else. As though Bork were the arbiter of the actual Constitution.
8.14.2007 5:21pm
David M. Nieporent (www):
So, if the application of a law treats people differently based on the melanin content of their skin, it is not creating "classes" or "castes." After all, melanin content is just an accident of nature.

I think your confused when it comes to your abstract conclusions. Race, like the capacity to give birth, is a biological accident, after all.
No, it's just a faulty analogy. The law doesn't treat people differently; the biological accident causes them to feel the effects differently. A law which said, "People who can get pregnant cannot vote" would treat people differently based on a biological characteristic. In that situation, the law is creating the class; the ability to get pregnant does not inherently have an affect on the ability to vote. That's not what we face here; the law doesn't create the class; biology does.

A law which, say, banned tanning salons would be analogous; that would be a law which treated people equally but which affected people differently based on melanin, a biological characteristic.
8.14.2007 5:25pm
Salaryman (mail):

As though Bork were the arbiter of the actual Constitution



Well, wasn't that in fact part of his job description for a while there?

I assume Balkin purports to describe what he sees as the actual Constitution as well. Indeed, I've never heard a proponent of rights found in penumbras, formed by emanations, say that they are talking about anything other than the "actual" Constitution -- no one ever says "Of course, this is all stuff we made up out of whole cloth, but it's really for the best, so let's everybody just go along with it, OK?"
8.14.2007 5:34pm
David M. Nieporent (www):
Jon, your attack on Bork for "arrogance" sounds to me like one of those internet complaints about "You think you're right." Well, duh. If I didn't think I was right, I would hold a different view.

The only alternative is that one believes there is no right answer at all, that there is no "actual" constitution, that it's just a matter of who has the power to put people on the Court to decide.

I don't think Bork is right about everything, but that's because I think he's incorrect in his views of the actual constitution, not because I think there's something wrong with talking about the "actual" constitution.
8.14.2007 5:34pm
Jon Rowe (mail) (www):
The only alternative is that one believes there is no right answer at all, that there is no "actual" constitution, that it's just a matter of who has the power to put people on the Court to decide.

Wrong. This knocks down a straw man. Balkin, and the other advocates of penumbral rights talk, would probably agree that reasonable minds, interpreting the same "actual Constitution," can differ on constitutional outcomes. I don't see him/them arguing the actual Constitution guarantees a right to abortion and those who disagree are interpreting some phony document where they make things up as they go along.

I don't think the most liberal justice ever on the Court thought or argued for just "make things up" as you go along. If that were the case, were I a Justice on the Supreme Court, I could interpret the Second Amendment to mean Jon Rowe has a right to have the state of Pennsylvania supply him free liquor for the rest of his life.
8.14.2007 5:48pm
Daniel Chapman (mail):
"Do what is right and let the law catch up" - Justice Thurgood Marshall
8.14.2007 5:55pm
Mr. Impressive (mail):

But you're highly partisan, so by your own logic, you're not worth reading. So shouldn't you stop posting and wasting everyone's "scarce time"?


I would think it entirely rational for an individual to skip over my posts if they made a probabilistic ex ante calculation that the expected costs of reading my posts exceeded the expected benefits. But I also think that this is an individual cost-benefit decision that will vary. Like I said, I do not expect anyone in particular to find it relevant that Ed Whelan is an excessively partisan individual. But some people, like myself, would find that relevant when they perform their own cost/benefit analysis.

In fact, I must admit that I regularly skip over posts by certain commentators here that I think are excessively ideological/predictable. This is especially likely when a post has many comments.
8.14.2007 6:01pm
Mr. Impressive (mail):

The law doesn't treat people differently; the biological accident causes them to feel the effects differently.


And the people who write the law know that this biological accident will cause them to feel the effects differently. That is, them feeling the effects differently is no accident.
8.14.2007 6:03pm
Mr. Impressive (mail):

The only alternative is that one believes there is no right answer at all, that there is no "actual" constitution, that it's just a matter of who has the power to put people on the Court to decide.

I don't think Bork is right about everything, but that's because I think he's incorrect in his views of the actual constitution, not because I think there's something wrong with talking about the "actual" constitution.


There is in fact another alternative. (The phrase "the only alternative" should usually be examined with caution. One should consider whether someone using this phrase is constructing a false dichotomy, as is often the case.)

Let me tell you what that alternative is. To think that the Constitution is partially ambigious and more ambigious in some areas than others. In fact, not only is there another alternative, but this alternative has the advantage of being true.

Talk of an "actual" Constitution when it comes to areas where the Constitution is objectively ambigious is nothing more than ideologically driven idol worship.

Sometimes you and Bork cannot agree because the Constitution is objectively ambigious. Its that simple. Your talk about how your resolution of an objective ambiguity reflects the "actual" Constitution than Borks resolution of the ambiguity is nothing more than empty posturing. If you wanted to be true to the actual Constitution, you would just admit that it was ambigious. But you don't. Instead of being faithful to the actual Constitution that exists, you want to be true to the "actual" Constitution that exists in your mind.
8.14.2007 6:15pm
Daniel Chapman (mail):
Of course it's reasonable for people to skip over your posts (if a little difficult...), just like it's perfectly reasonable for you to disregard everything Ed Wehlan has to say. It's just annoying to have you point out without argument that Wehlan is a hack and you don't care.

It's just forum clutter... that's all I'm saying.
8.14.2007 6:19pm
Mr. Impressive (mail):
Mr. Chapman,

It is not clutter. Some people are not familiar with Ed Whelan's highly partisan statements on Bench Memos. Whether you decide to read him or not, knowing that he is highly partisan should also inform your reading of his argument. Reading my post informs them of that true and verifiable fact that will either allow the to decide not to read Ed Whelan, or be more informed if they do.
8.14.2007 6:51pm
Daniel Chapman (mail):
heh... I stand corrected, I guess... forget I said anything.
8.14.2007 6:59pm
PaulK:
"So, if the application of a law treats people differently based on the melanin content of their skin, it is not creating "classes" or "castes." After all, melanin content is just an accident of nature.

I think your confused when it comes to your abstract conclusions. Race, like the capacity to give birth, is a biological accident, after all."

Mr. Impressive's analogy also fails, in addition to Mr. Nieporent's critique, because it attempts to draw comparisons between two sets of facts that simply are not analogous: the differences in race between people are not like the differences based on gender. Casual observation and genetics alike demonstrate that race is largely skin-deep; a white man and a black man have far more in common in terms of fundamental nature than either has with a woman of the same race. Race may be a biological accident, but it is not one that creates, in and of itself, fundamental a priori distinctions among people. The fact that lawmakers know that the laws they craft will impact different people in different ways goes almost without saying -- very few statutes (even the "inevitable" tax laws) actually touch everyone within society.
8.15.2007 11:39am