Brayton on Franck v. Balkin & Franck v. Pilon:
I have not been able to blog lately due to travel and writing commitments, which is too bad because if I could blog, I would blog about these exchanges between Matthew Franck and Jack Balkin on whether Balkin is a faux originalist and Roger Pilon on whether the fundamental rights jurisprudence is a scam. (For links see below and also Jonathan's post on the Balkin exchange.) Unlike Oren but like David, I think it is, as I explain in my forthcoming Michigan essay, Scrutiny Land, to which I am going to have to add a paragraph about Abigail Alliance, but which I seem to have forgotten to upload to SSRN. But no time for that now.

Fortunately, Ed Brayton does the reporting on Matthew Franck's critiques of Balkin and Pilon, their replies, and then provides an excellent critique of Franck of his own. You can find all the links and Ed's insightful commentary here:

Balkin vs Franck, Round One:
There's a fight brewing over the concept of liberal originalism as a legitimate mode of constitutional interpretation, a fight between Matthew Franck of Radford and Jack Balkin of Yale. Balkin, you may recall from previous posts on the subject, has undergone an interesting transformation over the last few years, from legal realist to originalist; like myself, Randy Barnett and others, however, he argues that originalism often leads to different results than those argued for by conservative originalists.

The first shot was fired by Franck at Douglas Kendall and James Ryan for an article in the New Republic discussing how liberals can "take back the court" by developing "an affirmative message of what the Constitution means" to counter conservative originalism. But since Balkin was cited by them, he came in for some criticism too.
And here:

Pilon v Franck:
National Review legal scholar Matthew Franck seems to be getting into the habit of tangling with my favorite legal scholars lately. First it was Jack Balkin, now it's Roger Pilon, director of the Center for Constitutional Studies at the Cato Institute. . . . It began with Pilon's op-ed in the Wall Street Journal (reprinted here) condemning last week's en banc ruling from the DC circuit overturning a previous ruling that terminally ill patients have a constitutional right to access to experimental drugs not yet approved by the FDA (Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach). Franck responded to that op-ed, leading to a Pilon reply, then a Franck reply, then another Pilon reply, and a final Franck reply. Got all that? Okay, let's look at the argument.

Bill Dyer (mail) (www):
No offense intended, but these sorts of debates explain why even brilliant lawyers like Chief Justice Roberts refuse, during their confirmation hearings, to get into self-characterization of themselves as identifying with any of these legal philosophies.

I've had a large handful of occasions to make constitutional arguments to trial and appellate courts; the consequences to my clients were large, and sometimes the precedents made were significant. I have no idea which if any of those "philosophies" my arguments fit into, though. And if someone were to figure it out and explain it to me, I'd feel much like the surprised youngster upon being told that he's been "speaking prose" all his life even without knowing what prose is.
8.17.2007 8:01am
Bill Dyer (mail) (www):
("Self-characterizations of themselves" is redundant, sorry. I forget that "preview" is my friend.)
8.17.2007 8:02am
Regarding Abigail Alliance, isn't anyone interested in the fact that the FDA and its laws and regulations are unconstitutional under an originalist's interpretation of the commerce clause? Commerce should extend only to interstate trade; not what precedes trade. Since it's constitutionally suspect in the first place, why are conservatives so adamantly opposed to striking it down on fundamental rights grounds?
8.17.2007 6:48pm