Franck v. Balkin on Originalism:

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.

Franck responds here (with a correction here), writing in part:

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.

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Originalism vs. Judicial Restraint:

Jack Balkin responds to Matthew Franck's critique this morning here. (For a recap of what came before, see here.) In an effort to clarify their differences on constitutional interpretation, he notes that "judicial restraint" and "originalism" are not the same thing (though they may overlap).

Matt's originalism sounds very much like a theory of judicial restraint. Now I for one don't think that originalism and judicial restraint are the same thing. For one thing, judicial restraint is a theory of how judges should act, not a theory of how people in general should interpret the Constitution. Judges are not the only people with the right and the duty to interpret the Constitution. For another, judicial restraint might not be faithful to the Constitution in many cases, especially when the judge believes that the best reading of the Constitution is that certain activities of the other branches are beyond their powers or otherwise unconstitutional. However, in the brief discussion that Matt offers it seems he thinks that originalism and judicial restraint dovetail very significantly. I'd be interested in why that might be so. That would help us focus where we are in agreement and where we disagree.
I think this is an important point that is worth developing. To restate it: Originalism is a theory of constitutional interpretation; judicial restraint is a theory of how judges should act. Matthew Franck (like Judge Robert Bork) advocates both an originalist approach to constitutional interpretation and a very limited role for federal judges in correcting or second-guessing the other branches of government. [For an example of an alternative pairing — originalism and judicial "activism" — see the Roger Pilon op-ed I noted here.]

One justification for this approach is that the President and members of Congress are also oath-bound to support and uphold the Constitution, and both are ultimately accountable to the people if they should stray to far in their constitutional constructions. A possible rejoinder is that this crabbed view of the judicial function may be more limited than the original understanding of the judicial function at the time of the founding. One could argue, for example, that the Franck-Bork approach to judicial review is more limited than that elucidated in The Federalist and Marbury. One question for originalists, then, is what conception of the judicial role is itself compelled by the original meaning of the "judicial power."

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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.

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Balkin Responds to Whelan:

The discussion between the folks at NRO and Jack Balkin over the latter's variant of original meaning constitutional interpretation continues. In response to Ed Whelan's series of posts I noted here (and part four here), Jack Balkin takes to his own defense here. Balkin concludes:

my point-- which I have made repeatedly in my articles-- has been that originalism does not and cannot constrain judges all by itself. Originalism is a theory of fidelity in interpretation, not a theory of judicial review, and it is certainly not a one-size-fits-all method for ensuring judicial constraint. It is the bedrock or framework on which judicial practice should build. Judicial practice means starting with text and principle but not ending with it. Judges should consult all of the standard modalities of legal argument to flesh out and implement original meaning. These modalities include enactment history, expected applications, structural arguments, precedents (both judicial and non judicial), and the opinions and views of previous generations about the best interpretation of the constitutional text. In my view originalism is a framework that rules some interpretations out of bounds, but does not do most of the work of deciding specific cases. It leaves a great deal to be filled in by judges doing what judges normally do-- reasoning from the traditional modalities of legal argument. In addition, as I describe in my article, there are structural features-- like the appointments process and the fact that the Supreme Court is a multimember body-- that keep decisions within the mainstream in the long run.

Ed's version of originalism, by contrast, tries to do too much. That's why his method produces all the problems I have mentioned. My fear is that if Ed's method is the right one, then nobody who serves on the federal bench-- Justices Thomas and Scalia included-- can be a consistent originalist today, in which case it is very difficult to know what the debate is all about. By contrast, I am trying to give an account of originalism that is both faithful to the Constitution and that not only judges, but also ordinary citizens, can use.

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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.

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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.

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