The back-and-forth between Jack Balkin, on the one hand, and Matthew Franck and Ed Whalen on the other, over originalism, constitutional meaning, judicial restraint, and abortion continues apace. Here's a quick round up.
First, the Bench Memos boys respond to Balkin. Here's Ed Whalen (part I):
I accept Jack’s distinction between originalism (a theory of constitutional interpretation) and judicial restraint (a set of additional principles about how judges should exercise their judicial role, whatever the proper method of constitutional interpretation). It does not follow, however, that the principle of respect for the democratic processes needs to be confined to the question of judicial restraint. . . .I believe that a presumption (rebuttable, to be sure) against trumping of the political processes flows from Jack’s “principle of democracy” and is properly part of an originalist theory of constitutional interpretation.Whalen (part II):
One of Jack’s primary criticisms of conventional originalism is that it supposedly can’t justify important precedents. Jack kindly asks me for my view whether various precedents are correct under the originalist approach that I am advocating. My short answer is that I don’t know, as I have not had occasion to study the relevant history with sufficient care to arrive at a conclusion. If there are important precedents that originalism can’t justify, I would submit that is because the Constitution, for all its greatness, is not, and never has been, a perfect document.And Matthew Franck:
Balkin is right that originalism is a “theory of how people in general should interpret the Constitution.” But one thing that people in general, and judges in particular, need to ask themselves is, what is the original understanding of the purpose, function, and limits of the judicial power under Article III? Knowing that will lead, inexorably I think, to a restrained account of what judges may and may not do. Sometimes this restraint, grounded in original understanding, will result in rulings that leave intact laws and policies that no originalist should vote for if, say, he serves in Congress. That is not a mark of originalism’s failure, or of the Constitution’s. It is a mark of their success, in leaving large stretches of constitutional interpretation to the people themselves, and not to judges presuming to govern them. . . .Jack Balkin replies (primarily to Franck):
He evidently thinks it quite the riposte to me and Ed to inquire whether we approve of certain rulings, especially in recent history. He wants to know, for instance, whether Ed’s originalism can “explain the modern sex equality cases, or, for that matter, much of modern First Amendment jurisprudence, including the commercial speech cases.” Unless Ed tries to justify certain outcomes in these areas on originalist grounds, I don’t know why this is a question. It may be that many modern rulings would fall by the wayside if the correct version of originalism were rigorously applied. Why would this be a vice and not a virtue?
Surely it cannot be that the test of the adequacy of any version of originalism is whether it supports certain results we are predisposed to like on other grounds. Can it?
For me the Constitution involves present day commands that bind current generations just as much as past ones. Therefore if one thinks that great achievements like the Civil Rights Act are an important part of our political and constitutional traditions, one can't adopt a theory of interpretation that renders most of these laws unconstitutional, even if we keep judges from remedying the unconstitutionality.Matthew Franck fires back:
Matt strongly objects to this sort of reasoning from our existing legal traditions; he regards it as the essence of results-oriented jurisprudence. I disagree. I think that any serious theory of interpretation-- and by serious I mean one that actual judges and actual political officials living in the present can use-- has to recognize key achievements of American law as a starting point for understanding how we interpret our Constitution. Matt's version of originalism is pretty much hopeless from this standpoint.
But there is more to it than mere impracticality. The Constitution's legitimacy comes from the fact that it is our law in the present, and that Americans in the present are attached to it and regard it as their supreme law. A theory of Constitutional interpretation that holds that most of their law-- including the laws they are most proud of-- is illegal and based on a lie, cannot possibly serve the functions of political legitimacy necessary to a constitutional system. . . .
The great advantage of my model of originalism is that it can give an account of why our current structures of law-- not just Roe v. Wade, about which Matt seems particularly concerned-- but the Civil Rights Revolution, the New Deal, and the most significant achievements of the 20th century, are consistent with our constitutional traditions. It shows how we can be faithful to the original meaning of the text and its underlying principles through changing circumstances.
Matt may think these goals are relatively unimportant; he may dismiss them as result-oriented. But I disagree. I tend to think that establishing the connections between our present day laws and our constitutional traditions is what a good interpretative theory is all about.
Balkin pretty much confesses to the result orientation I have mentioned previously. "The great advantage of my model of originalism is that it can give an account of why our current structures of law— not just Roe v. Wade, about which Matt seems particularly concerned— but the Civil Rights Revolution, the New Deal, and the most significant achievements of the 20th century, are consistent with our constitutional traditions." Of course it is Balkin who is "particularly concerned" with Roe v. Wade, having spent scores of footnoted pages attempting to justify it. No, I have that backwards. He attempted to justify originalism by reference to abortion rights, and he succeeded only in destroying everything about the edifice of originalism except the sign that hung on the building, which he picked up from the rubble and slapped on the construct hitherto known as the "living Constitution."My excerpts of this (by now voluminous) exchange may not be wholly representative, so I encourage folks to read the interlocutors' comments in their entirety.
"Our constitutional traditions" have nothing to do with Balkin's project. I'm afraid "our law school traditions" would be more accurate. When he says "we should see judicial interpretation as a special case of the citizen's perspective," he either does not see, or wants his readers not to see, that this "special case" is all about judges telling citizens they can take their "perspective" and go soak their heads.
UPDATE: Balkin bites back. A taste:
The central disagreement between Matt and myself has been my distinction between "original meaning" and "original expected application." Matt, who subscribes to originalism as "original understanding," argues that my distinction "is untenable and unacceptable" for himself "and for any other orignalists [he] can think of." . . .
My central claim has been that Matt's version of originalism, which asks how people living at the time of adoption would have understood how the constitutional text should be applied, is "untenable and unacceptable," to use his words. It is untenable and unacceptable because no one living today could consistently use his model of originalism to guide their conduct in politics or in law. . . .
Most Americans would be appalled at the consequences of the original understanding approach in both areas of rights and powers. That is true both of the readers of Balkinization, and the readers of National Review Online. It is true of liberals and conservatives, Democrats and Republicans. Original understanding originalism of the kind Matt is preaching, faithfully and consistently applied, does not legitimate the Constitution; it thoroughly delegitimates it.