Matt begins the conversation

JB

Matthew Franck was gracious enough to respond to my earlier discussion here , here, and here. (Hat tip to Jonathan Adler, who also adds some useful comments of his own here).

Matt reports that he read the first of my articles on original meaning but didn't get around to the second. I wish he had, because it contains responses to critics of various stripes that are relevant to many of the things he says. It also would have prevented him from a few misreadings, one of which he corrects along the way.

Matt says many interesting things in his postings, but there are two that are particularly worth noting, and may serve as a good way in to understanding the similarities and differences between our views. At one point he says, "I have yet to encounter a federal regulation of commerce that I thought the Court could properly overturn on nothing other than an interpretation of the commerce power." At another, he says "Readers will notice a pattern [in the cases where my theory of interpretation produces a result contrary to my policy preferences]. All my "gee, I'm stuck with that one" conclusions involve criticisms on my part of the Court improperly using its power to void the acts of other authorities."

I'd be particularly interested in having Matt explain is why he thinks the original meaning of the Commerce Clause imposes almost no constraints on federal legislation. Does he believe, for example, that Darby, or Wickard, or Heart of Atlanta and Katzenbach v. McClung were correctly or incorrectly decided? Does he believe that Lopez and Morrison were correctly or incorrectly decided? How does this square with his theory of originalism? I think his answer will tell us a great deal about any similarities or differences between his account of how you apply the text in present day circumstances and my account of text and principle. (By the way, Matt, the idea of original expected application includes your helpful notion of "originally foreseeable application," so it's not as much of a straw man as you might have thought. That's why, for example, an expectations-based originalist can take account of changes in technology).

The reason I ask about the commerce clause cases as the place to start the discussion is that 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.

A second thing I'd like to hear Matt on is his view of sex equality law. It was my impression in reading some of his criticisms that he might begin from the premise that the courts' current sex equality law is wrong and that sex classifications deserve no special scrutiny. All this would be relevant to knowing how to apply the Fourteenth Amendment in light of its enactment history. Does Matt think, for example, that the marital coverture rules are still constitutional and that BradleyBradwell v. Illinois was rightly decided? If that's so, I'd like to know it, because it would help us see where we agree and disagree. In particular, I'd be interested in whether he has any criticisms of the history of the Fourteenth amendment that I've laid out.

And, by the way, I really think he should read the second article!
Posted 8:55 AM by JB [link]