pageok
pageok
pageok
More Bench Memos Boys v. Balkin:

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. . . .

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?

Jack Balkin replies (primarily to Franck):
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.

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.

Matthew Franck fires back:
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."

"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.

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.

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.

williamandmaryalum (mail):
Well said Matthew Franck. If only your ideas could gain ground in our nation's law schools.
8.19.2007 3:12pm
Brett Bellmore:

The great advantage of my model of originalism is that it can give an account of why our current structures of law ... are consistent with our constitutional traditions.


That's not much of an advantage if, in fact, they aren't consistent with those traditions.
8.19.2007 4:08pm
Christopher M (mail):
The idea that one should evaluate a theory of constitutional interpretation wholly without regard for what sort of (and what specific) constitutional rulings it would entail (i.e., its "results") is so bizarre that I don't understand how anyone can take it seriously, whatever their political outlook.
8.19.2007 4:11pm
Jay Myers:

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 supreme law whose interpretation is changed so that it conforms to lesser laws is not very supreme. If Americans in the present were really attached to the constitution as law then we would obey it or legally change it rather than constructing rationalizations for ignoring it.

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.

Balkin is saying that if the government does something that we like but that the constitution forbids, we must either pretend the constitution says something other than it does or else the constitution loses its legitimacy. This is completely backwards. In such a situation, it is the action we otherwise approve of that does not have legitimacy because it is the constitution that gives legitimacy to our federal government and its actions.

Fortunately, however, there is a remedy for this situation. There are methods by which the constitution can be changed in reality with no pretending required. If you can't gather enough support to ammend the constitution then I guess we didn't like that law or ruling as much as Balkin thought.
8.19.2007 4:12pm
Pithlord (mail) (www):
Franck's claims about Article III don't pass the laugh test. As best I can see, he says the Constitution requires a British model of total judicial deference to Congress. What about Federalist No. 78? What Article III, Section 2: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution..." What about the assurances of the Federalists that enumerated powers were limited powers? What about the fact that the ratifiers of the Fourteenth Amendment surely assumed that judicial review was part of the American constitutional structure?

Franck just plays to his own cheap seats in response to all of this.
8.19.2007 4:13pm
Brett Gardner (mail):
any 1L can tell you arising-under jurisdiction isn't as clear-cut as it sounds.
8.19.2007 4:17pm
loki13 (mail):
This is an engaging, but ultimately futile debate. I am amused (for lack of a better word) when I see the 'originalists' all up in arms now that there are 'liberal originalists'. What, there's a possibility that originalism doesn't support your policy preferences? My, wouldn't that be awful.

There is no originalism. Just politics. Do you think you know the 1st Am? The original intent? The original expected application? Maybe the founders knew it, hmm? They were pretty well-versed in ConLaw, and yet they passed the Alien &Sedition Acts.

All the various constitutional interpretive theories are simply ways to name personal, results-oriented jurisprudence. Whether its watching an originalist justify an expense for an air force, or an administrative agency, or a 'liberal originalist' justify abortion, it's all just intellectual widow dressing to draw the personal result desired out of the Constitution while maintaining some intellectual cover.

Nothing is true, everything is permitted. Just be honest about it.
8.19.2007 4:25pm
Jon Rowe (mail) (www):
Franck is clearly trying to weasel out of the corner he's painted himself in by refusing to answer direct questions, but point to some comma here or footnote there and otherwise hairsplit with qualification.

I've watched a video (available online) where Franck stated he couldn't remember the last time Congress violated the Constitution (he noted every time the Supreme Court issues an activist ruling, it violates the Constitution). That means he believes Congress' post-New Deal powers are constitutional and therefore proves his "original understanding" of the Constitution is outcome based and otherwise no more deserving of the mantle "originalism" than Balkin's.
8.19.2007 4:26pm
Brett Gardner (mail):
I couldn't disagree with that more. The problem, as I see it, is that many people cannot distinguish policy with law. As a matter of policy, I think students should have broader speech rights in school. As a matter of law, I agree with Thomas' concurrence in Morse--there are no rights. Same with flag burning, abortion, etc. Nihilism has its place, but it offers little insight into the law, only obfuscation.

The truth is that originalism (as defined by original understanding, as opposed to intent, expected application, etc.) is only a starting place, not a finish line. Balkin's reverse logic doesn't stand up to even moderate scrutiny, and I agree with Jay's interpretation.
8.19.2007 4:34pm
Jon Rowe (mail) (www):
The problem, as I see it, is that many people cannot distinguish policy with law.

Including Franck, who values "democracy" as a policy, when our Founders gave us a "republican" constitution of limited enumerated powers, which trumps majority will in a vast area of policies at the federal level.
8.19.2007 4:54pm
loki13 (mail):
Brett,

There is nihilism, and there is realism. Oh, and there is also originalism, which may be nihilistic at times, but is certainly not realistic.

People choose interpretive philosophies because of their policy preferences, not vice versa. Will Thomas ever go to an originalist view of the 14th Am? Either intent or expected application? You know, that it was to be used to *help* (affirmative action in today's parlance) *black* (not women, not asians, not gays) people? So that a law setting aside (quota) a certain number of jobs for an adult black male in the South would be fine (why the South... well, because the orig. expected application was to punish the South, right?), but not allow it to be used for almost anything else?

How about the 11th? That's pretty unambiguious (another state), yet, a conservative (we didn't have originalist justices back then) ruled it applied to your own state.

*sigh* You could just go texturalist, of course, but that gets you into other problems, like no air force, or severe mental gymnastics to justify having one.

All people pick the philosophy that ends with the most results they agree with, and then ignore the really inconvenient problems that go against the grain. See Scalia, and his 'drug exception' to the Federalism and the Bill of Rights. Or Thomas, and his nuanced understanding of executive power and originalism. And so on.

The issue I have (and you should as well) is that there are people that cloak themselves with the mantle of being 'right' when they interpret the Constitution. I can ask that they be principled; I can ask that they be transparent in their reasoning; I can ask that they be judicious; it is the height of hypocrisy to say that one can divine the true meaning of the Constitution. Such fundamentalists are merely trying to pull a fast one, and would be better off selling their legal snake oil elsewhere, whether it be the liberal, the conservative, or the originalist snake oil.
8.19.2007 5:03pm
steve lubet (mail):
Franck gives away his agenda when he says:


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.


But why would an originalist have any particular policy preferences? Isn't orignialism simply a method of Constitutional interpretation? Why would an "originalist" be presumed to vote against any particular law or policy, so long as it is within congressional power? Unless, of course, originalist (as Franck uses the term) is simply a euphemism for conservative.
8.19.2007 5:10pm
Jon Rowe (mail) (www):
Steve,

Franck is saying the original in Congress should not vote for the law because it is not within Congress' power.

That said, the quotation you reproduced is one of the places I refer to where Franck tries to weasel out on a technicality. Franck values democracy as a policy preference more so than the Framers of America's Constitution did. He's trying to invoke a procedural technicality to give Congress the final say on what is within their constitutional power, so Franck's policy preference of democracy can be vetted. Well, why not just get rid of judicial review altogether?
8.19.2007 5:29pm
frankcross (mail):
I'm not familiar with all of Franck's views, but if he opposes justices striking down actions of the other branches, I would not call that politically conservative. It would eliminate takings clause and commerce clause jurisprudence, for example.
8.19.2007 6:07pm
ReaderY:
Justifying ephemeral partisan political decisions as "a proud part of our Constitutional heritage" etc. etc. etc. is simply another way of saying "I like it."

Claiming that contemporary Commercial Speech doctrines are fundamental achievements etc. requires particular note. If these doctrine were completely revised tomorrow, few ordinary citizens would notice and fewer would care. One has to live in very rarified circles to believe otherwise. Similarly, it's clear that roughly half the country opposes Roe v. Wade in favor of anything from restrictions on to recriminalization of abortion. Clearly, only those who support it could possibly be proud of it.
8.19.2007 6:55pm
jim:
I am always a little suspicious of the people who think judicial restraint is so important that they are willing to let vast quantities of unconstitutional laws remain even when there is little difficulty with judicial review over them. It is one thing to say that the courts should limit their standing doctrine, or that they aren't good at telling what laws are for the general welfare, for instance....

....But if you are seriously advocating that Congress, not the courts, should interpret the constitution, and you are a dedicated originalist, you shouldn't be having constitutional debates with judges and law profs, you should be standing up in Congress testifying about the constitutionality of potential legislation. You should be running issue ads that highlight the case for the unconstitutionality of laws. Hell, you should probably be running for office so you can stand up and fillibuster unconstitutional bills.

The reason the SCOTUS struck down only 2 laws in its first 70 years (and had to stretch in both cases) was because Congress used to care about the Constitutionality of the bills it passed. Restore Congress's sense of obligation to the constitution and you will restore the courts to a more modest role in our political system.

That I see practically no one in the originalism-means-judicial-restraint camp doing that makes me think it is all grounds for letting Congress surpass its legitimate powers through a technicality. If promoting Congressional rule is your idea of originalism, why don't you go sit next to Justice Breyer so you can congratulate each other on discovering that the Founders loved democratic rule so very much.

We came from a country where Parliament was soveriegn to make a nation where instead the People were soveriegn. The ease with which so-called originalists now confuse giving power to the people with giving power to Congress makes me think we're back to having Parliament be soveriegn.

It makes me sad that we've lost the Founders' sense that legitimacy flowed from giving teh state only limited powers put to necessary ends and have replaced it with a sense that elections grant legitimacy.
8.19.2007 7:02pm
Brett Gardner (mail):
Loki,

Where you get your thesis from, I don't know. You make a bold proclamation without any support. Personally, and as I stated before, I would disagree vigorously with many of the results of original understanding, but that doesn't mean I don't support that method because it is the only way to keep our nation anchored.

Some here have said that the Constitution is imperfect. I agree. There is a way to correct imperfections that comes from the document itself and not from judicial preference.

So you can't justify an Air Force? A paper currency? Abortion? Well...amend it. Easy if you have the numbers. Of course the first two would easily make it, and the third would not. That's democracy, and it's no policy preference.
8.19.2007 7:06pm
frankcross (mail):
One wonders how "anchoring" originalism can be when some of its prominent advocates include those favoring extreme judicial restraint (Franck) and those favoring an aggressive libertarian judicial review (Barnett).
8.19.2007 7:16pm
Brett Gardner (mail):
You know as well as I that there are legitimate disagreements within any school of thought. That doesn't nullify the school.
8.19.2007 7:23pm
jim:

People choose interpretive philosophies because of their policy preferences, not vice versa


Sure. On some level at least. At root I am an originalist because I greatly admire significant portions of our Constitution, so much so that studying it has changed some of my policy preferences. If I regarded the Constitution as worthless, I wouldn't be so keen to see it's provisions enforced.

I don't think I would care much about enforcing the spirit of a Nazi-drafted constition </godwin's law>.

So choosing to associate the Constitution with its original import is on some level a policy decision, but it doesn't follow that individual interpretations are or must be policy-driven. Prominant scholars can and do arrive at constitutional theories that give results at odds with their policy preferences.
8.19.2007 7:28pm
jim:


One wonders how "anchoring" originalism can be when some of its prominent advocates include those favoring extreme judicial restraint (Franck) and those favoring an aggressive libertarian judicial review (Barnett).

You know as well as I that there are legitimate disagreements within any school of thought. That doesn't nullify the school.


No, it doesn't nullify the school of thought. But it does nullify the lame Borkean proposition that the primary virtue of originalism is that it removes judicial disgression and solves legal indeterminacy.
8.19.2007 7:36pm
loki13 (mail):

Sure. On some level at least. At root I am an originalist because I greatly admire significant portions of our Constitution, so much so that studying it has changed some of my policy preferences. If I regarded the Constitution as worthless, I wouldn't be so keen to see it's provisions enforced.


This, of course, is the problem. The picking and the choosing. Much as an 'originalist' view of the Bible can vary greatly depending on which sections of the Bible you emphasize, an originalist view of the Constitution will vary depending on what areas of the Constitution you choose to emphasize.

I notice that originalists, such as Clarence Thomas, like to emphasize the 1st Am., and discard stare decisis, except when it comes to corporations. By this interesting view, students (people) get less protection from the 1st Am. than corporations who are (of course) never mentioned in the Constitution. But corporations are people by stare decisis, which then becomes valuable.

Why is this? Because originalism is a great code word for conservative jurisprudence. Now that many legal scholars have co-opted this philosophy, and provided arguments that conservative originalists find discomforting, we get the fireworks above.

But this was never about originalism. This was politics. And justifying essentially political rulings. Always has been with the judiciary (I highly recommend reading the book on Jefferson and Marshall's relationship for some insight into this). I have no problem with this. What I find amusing is the tempest in a teapot.

As for Brett- try reading any source material on the passage of the 14th. I recommend starting with the reason for the passage (originally thought to be superfluous in the wake of the 13th) and the legislative debates over it. See also the enforcement acts passed by Congress (such as the first Civil Rights Act) after the 14th was passed. If you're truly an originalist, you're for affirmative action (for adult black males in the original Southern states).
8.19.2007 7:45pm
Brett Gardner (mail):
Thanks for the history lesson. It's a bit misguided, however. The Civil Rights Act of 1866 merely specified principles that were not equally protected--i.e. the right to contract, own property, etc. You aptly describe it as an enforcement statute. It had absolutely nothing to do with "affirmative action".

Additionally, the 13th Amendment simply eliminated slavery, while the 14th granted equal protection among other things. If you're equating equality with preference, then you have a problem with terms.

An originalist must be in favor of equality of the races. There's no argument there. That does not, however, lead to the conclusion that a black must be hired instead of a white or vice versa as a matter or government policy.
8.19.2007 8:12pm
Mark Field (mail):
The Freedman's Bureau Act is a better example of Congressional affirmative action. There are others as well.
8.19.2007 8:24pm
frankcross (mail):
Brett, it is perfectly legitimate for schools of thought to have differences. If those differences are totally antipodal, to the point where on thinks that up is down, however, that pretty much establishes that the school of thought is not very disciplining.
8.19.2007 8:29pm
jgshapiro (mail):
Franck's argument in this last post is telling. He notes that he has allowed himself to be placed on the defensive and allowed Balkin to go on the defensive and laments that fact, trying to regain his footing and go after Balkin. But he never details what exactly his views are on originalism: what decisions he thinks were rightly decided and what decisions were not, and more importantly, why. So it is hard to credit his response.

Indeed, if there is any 'there' there in originalism, he should be able to point precisely to significant decisions and render a judgment as to whether they were rightly or wrongly decided, and also point to decisions he would uphold even though he hates the result, as well as those he would strike down, even though he likes the result. Conveniently, it seems the decisions he would overrule are those he disagrees with on policy grounds (e.g., Roe), and vice-versa (e.g., AA cases). That says more than 20 more volleys of posts between Balkin and Franck would say. He has substituted results-oriented decisions with results-oriented theories of getting to decisions, which just happen to get to the same place.
8.19.2007 8:29pm
jim:

This, of course, is the problem. The picking and the choosing.


If you mean to say that picking and choosing is problematic when it occurs, then I agree. If you mean to say that many self-identified originalists are motived by politics over principle, then I agree there too. But if you mean to say that there must inherently be picking and choosing, and that every originalist is simply motivated by politics, then I disagree. Every movement will always have people who are genuinely motivated by principle and those who are motivated by expediency. The existance of the latter should not disparage the former.

Regarding the 14th amendment - if your point is that Thomas glosses over a complicated history and difficult interpretive task in favor of a colorblind interpretation that the evidence does not unequivocally support, sure, I can accept that. But if you are trying to say that the original applications of the amendment grant an equally uncomplicated mandate for a specific type of affirmative action, I must disagree. I think that makes the same error in the opposite direction. Based on history, I'd also recommend the the Civil Rights act passed before the 14th amendment as a better guide to its meaning.
8.19.2007 8:40pm
AF:
Franck's reading of Gibbons v. Ogden (ie, that it unequivocally says the scope of the Commerce power is a political question) is so directly contrary to the mainstream of constitutional law, constitutional scholarship (except, ironically, that of some proudly non-originalist liberal scholars), and the text of Gibbons v. Ogden that his presenting it as the clear original meaning of the Constitution makes it difficult for me to take him seriously as an expert on constitutional law (he is, after all, a political scientist without a law degree). Do any of Franck's defenders care to defend this reading?
8.19.2007 8:40pm
jim:

Much as an 'originalist' view of the Bible can vary greatly depending on which sections of the Bible you emphasize, an originalist view of the Constitution will vary depending on what areas of the Constitution you choose to emphasize.

I think there is a fundemental dichotomy between biblical interpretation by a believer and constitutional interpretation. Constitutional interpretation can be plausibly considered exegesis. You are trying to attain fidelity to a meaning embedded in the text, which need only be understood in a mundane way.

Religious interpretation is different, because faith is a creative act, inherently eisegetical in that the believer is trying replicate a spiritual epiphany, not just copy an idea. People wouldn't talk about being born again if their biblical understandings arose from methodical and impersonal rules of interpretation.

Sorry for the tangent, but I happen to be burdened by training in religious studies.
8.19.2007 9:08pm
AF:
Here's Franck's passage on Gibbons v. Ogden:

Balkin writes that "Marshall did not say [in Gibbons v. Ogden] that the question of what was within or outside the commerce power was a political question. Otherwise Marshall's discussion of why navigation was commerce and why the government could regulate commerce that moves between state borders would have been superfluous." But what he says Marshall did not say is exactly what Marshall did say—that authority over the commerce question lay with Congress and the people, not with courts.

(emphasis in original)

This is an elementary misreading of Gibbons v. Ogden that would earn a second-year law student a poor grade on a Constitutional Law exam -- the Supreme Court, in its centuries' worth of zigging and zagging over the limits of Congress' Commerce power, has never read Gibbons v. Ogden to mean that the limits of the Commerce power are a purely political question. Nor have scholars ever read it to mean that -- those (again, liberal, non-originalist) scholars that have argued the Commerce power is a political question have done so on political theoretical grounds (sometimes inspired by the spirit of Gibbons) but never on the grounds that Gibbons v. Ogden says it is.

But even worse, Franck writes this is in response to Prof. Balkin's gentle correction of this very error. Thus, not only does Franck badly misunderstand Gibbons, he doesn't even get it when it's explained to him. And to top it all off, he makes fun of the explanation:

Whether it follows that Marshall's discussion of what Congress may regulate and not regulate is "superfluous" is another question entirely, much worth pondering. Notice that I am not answering it here. But insisting that Marshall didn't say what he in fact said, because "otherwise" his opinion wouldn't make sense to you, is an imposition of one's own categories of thought on another, to the point of violating the text we are trying to read.


This is an embarrasing performance for someone attempting to engage with the legal profession.
8.19.2007 9:09pm
Greedy Clerk (mail):
This Franck character strikes me as a clown -- and a clown without class; Balkin is being the gentleman here. And AF points out quite well what a dipsh_t he is when Balkin explains to him what Gibbons in fact said.

He sure does love those big words though. And someone explain to me what he is trying to say here other than trying to sound smart: "insisting that Marshall didn't say what he in fact said, because "otherwise" his opinion wouldn't make sense to you, is an imposition of one's own categories of thought on another, to the point of violating the text we are trying to read." HUH?!?!?
8.19.2007 11:06pm
Dave Hardy (mail) (www):
Do you think you know the 1st Am? The original intent? The original expected application? Maybe the founders knew it, hmm? They were pretty well-versed in ConLaw, and yet they passed the Alien &Sedition Acts.

Actually, that's one of the points of original understanding. *Some* framers, coming to power as the Federalist Party, thought the first amendment allowed them to punish political speech (i.e., an 18th century version of Campaign Reform).

That the American people responded by destroying the Federalist Party would indicate that there was a different understanding of the right.
8.20.2007 1:28pm
Jon Rowe (mail) (www):
Another interesting point of analysis is the doctrine of enumerated powers with unquestionably can be derived from the Constitution's text.

Many Framers thought we didn't even need a Bill of Rights because of Congress' limited powers. Even without a First Amendment, the Alient &Sedition Acts would still be unconstitution because such are not within Congress' enumerated powers.
8.20.2007 2:11pm
loki13 (mail):
Dave,

The Federalist party was 'destroyed' (I think transmorgified would be a better choice of words) for reasons including, but predominantly other than the A&S Act. Your post, however, continues to illuminate my point-

The 1st Am. seems very clear. Yet shortly after its passage, there was a robust debate about its applicability among the very people who passed it. A *political* debate. One in which the Federalists attempted to continue to exert power by packing the Courts, and that Jefferson attempted to dissuade by both rhetoric and action (cancelling S. Ct. terms among other actions).

That the 1st Am., which is relatively clear, can be clouded by such politics leaves little hope for an unambiguous interpretation of the rest of what is, in essence, a political document.

OK wrote that the method of interpretation can best be judged when it produces results contrary to the policy preferences of the individual. I think that is a smokescreen; conservatives (a la Scalia) can claim originalism 'forces them' to give a few liberties to criminal defendants while allowing them to enact their policy preferences in most areas unchecked. Now liberals are playing them same ballgame, giving up the 2d Am. (yeah, you can have guns) to gain legitimacy while working to find the true original meaning of the Constitution.

Here's the problem- there isn't one. When Scalia, Roberts, and Thomas et al write their first opinion that mentions that corporations aren't mentioned in the Constitution, maybe I'll believe they are being intellectually honest. When Ginsburg, Breyer et al are unable to find abortion and homosexuality in the Constitution, then I'll believe them. Until then, it's just a shell game.
8.20.2007 2:18pm
Mark Field (mail):

Many Framers thought we didn't even need a Bill of Rights because of Congress' limited powers.


That's right. Hamilton, for example, made this argument in Federalist 84: "Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?" Of course, it was Hamilton's party which then passed the Sedition Act.....

The Federalists claimed they saw no inconsistency in this because of their view of "freedom of speech". As James Wilson told the PA ratifying convention (December 1, 1787), "What is meant by the liberty of the press is that there should be no [prior] restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character, and property of the individual." Thus, as long as Congress passed no prior restraint, it didn't violate the 1st A.

In evaluating the effect of the election of 1800 on the Sedition Act, it's also important to understand the reasons why the Republicans argued for its unconstitutionality. Madison based his argument on free speech grounds, but not everyone did. Jefferson, for example, based his on separation of powers, i.e., that the federal government lacked power to regulate sedition, but the states remained free to do so. If most Republican voters agreed with Jefferson, then it wouldn't offer much comfort to advocates of free speech.

That's assuming that the Sedition Act was a primary cause of both Jefferson's electoral victory (highly dubious) or the subsequent decline of the Federalist party (even more dubious).
8.20.2007 2:39pm
David M. Nieporent (www):
Everyone's picking on Franck, above, and I can't really defend him; his views on judicial restraint in particular I find to be rather unpersuasive. But what about Balkin? Franck (and Whelan) are right on one point: any attempt to make abortion an originalist position doesn't pass the laugh test.

And Balkin's notion that creating new rights (as opposed to new government powers) via the judiciary somehow respects modern views is... puzzling. To argue that people won't accept the legitimacy of the constitution if it is interpreted as allowing those very self-same people to pass laws that they want to pass isn't "results oriented" so much as it is nonsensical. The problem with living constitutionalists, whether they try to call themselves originalist or not, is that their agenda is the exact opposite of what they claim; they're not trying to reflect modern views, but trying to reflect their own views in the face of modern views.
8.20.2007 3:46pm
nunzio:
Doesn't the Necessary and Proper Clause combined with Congress' substantive powers under:

the Commerce Clause allow for printing of paper currency?

the land and naval forces clause allow for creation of an Air Force?

Does anyone think that because treason and counterfeiting are the only enumerated crimes in the Constitution that Congress can't pass other criminal laws?
8.20.2007 5:24pm
amper:
I find myself utterly appalled at the notion that any of the actors in this discussion could possibly be considered fit to teach others about, or report upon, the principles of law, given the obsequious ways in which each and every one of them consistently uses half-truths about their opponents' positions to advance their own political agenda, while simultaneously grossly failing to support their own points with anything even resembling solid reasoning. The evident willful lack of intellectual and logical rigor displayed here is astounding and profoundly disappointing.
8.21.2007 5:38am
amper:
I should add that my comment above was meant to apply to Balkin, Franck, Whelan, Rappaport, and McGinnis, and not to Pilon and Brayton, nor should it be construed to apply to Kendall and Ryan, whose article I have not read as I do not intend to subscribe to The New Republic.

Balkin, Franck, Whelan, Rappaport, and McGinnis, however, deserve nothing but contempt for their ridiculous dance in which they alternately propose valid points which they then attempt to justify using inadequate means, even when more accurate bases plainly exist for those points, and then proceed to willfully misconstrue the opposing position. Granted some of these actors are more guilty than others, but they all display their ulterior motives on their sleeves.
8.21.2007 6:05am
amper:
I will also state here that although I may be guilty of not providing substantive support for my claims, above, such support will be clearly derived from the cited articles and posts by anyone who is willing to forgo any preconceived justification of outcome and is willing to construct rational foundations for the arguments presented.
8.21.2007 6:09am