Saturday, August 18, 2007
Matt Explains Himself-- Originalism and Federal Power
The series of posts between myself and Matthew Franck and Ed Whelan over at NRO has turned into a really valuable discussion of different ways to think about originalism and their respective advantages and disadvantages. Both Matt and Ed have offered thoughtful responses to my last set of arguments. In this post, I'll take up Matt's latest discussion.
"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."
I think what we have here is a fundamental failure to understand the function of democratic legitimacy.
The majority, the winners in a democracy, are always going to regard their victories as legitimate, and not inquire too deeply into how they were achieved, or the reasoning they rest on. Winning is it's own justification.
Democratic legitimacy is important for it's effect on the losers. For the minority. Because the minority is seldom so small that they can not, if they decide the game is rigged, render a country ungovernable.
Constitutional reasoning, to confer democratic legitimacy, doesn't have to persuade the majority, who if they won will be persuaded by any old claptrap. It has to persuade the minority. It has to convince them that, while they lost, they lost by the rules.
And the minority has no reason to pretend that the Emperor is fully clothed.
This is the danger of theories of Constitutional 'interpretation' which rationalize that the Constitution really means whatever is acceptable to the majority at any given time. It takes the pressure off the majority to make the Constitution actually conform to the majority's preferences, resulting in a growing gulf between that Constitution and practice. And while the majority has every reason to ignore that gulf, the minority doesn't.
I think the loss of an appointed Senate has contributed to too much judicial review, which the Senate originally could have prevented...right now they act the same as the HoR does. No "cooling saucer".
I don't understand why JB is in an intellectual discussion on this topic with Franck. It's a battle of wits with an unarmed opponent. Franck has no intention of explaining himself because he can't. He just thinks what he thinks and does not appear to have any reasoned basis for it. It's a waste of time to debate someone who takes that approach to the discussion. It appears Franck doesn't see the Constitution as law - it's a guide. For Franck, the political process always produces correct results. Has he been living in this country for the last 6 years?
It's delightful to see this exchange, as Benchmemo's has had their cake and eaten it too for all too long, jabbing what they see as weaknesses in other folks honest attempts to answer all questions (and difficult ones at that) that challenge their constitutional theory while declining at many a turn to put forward anything like a robust theory of how they would decide current, past or more importantly future cases (since then their beloved GOP, whom they are devoted to defending, may as they tend to do shift constitutional position on something and they would be in a posiiton where they had condemned the action beforehand).Post a Comment
I know Matt Franck, and he is a learned man, but one who is casually dismissive (as all Staussians seem to be) of anyone who does not share his axiomatic postions (which is very odd considering how eccentric, at the least numerically among fellow scholars, these views are). In Franck's book On the Imperial Judiciary he argues that the branches are co-equal constittionally, that they each should have the power to check each other. He does not dwell on the ability of amendments and nominations to shore up the power of the two political branches in this area, but rather actually thinks that certain parts of the Constitution fall under the regulation of different branches. So for example the 1st Amendment, despite its explicit wording that "Congress shall make no law..." is to be reviewed not by judiciary but by...the Congress!! Congress should be its own judge as to whether it has been faithful to the speech, press and religion clauses. This is extraordinary indeed, divesting the text of the countermajoritarianism effect that its wording patently expresses. In talking to him he seemed to think that the judiciary should exercise review over the Amendments that deal with the natural spehere of courts, "criminal justice" amendments, i.e, 4-8, leaving the others be. Perhaps this has to do with his idea that no individual judicially enforceable rights exist under say the First or Third (can you imagne? if a soldier is in my very home one would think that is a violation of my individual right and that a court is the place to issue a writ to throw him out, a more individual right I cannot imagine). Franck did his doctoral work on Marshall and so will draw on him extensively, and so I once asked him, if the judiciary must stick to sections of the Constitution that fall under its natural purview, then why in the world are sections from Sec. 1 Art. 9 explicitly mentioned by Marshall in Marbury as areas prone to judicial review? Why wouldn't Congress decide whether it had overstepped these Article 1 bounds just as he thinks they should with the 1st Amendment, since both sections clearly are "about" the duties of Congress. I asked him about this and he said he was still "working it out." Indeed! But he still rudely shouts down those with whom he disagrees who are tring honestly to work out areas that seem to pose challenges to their overall constitutional theory (such as JB on abortion). Notice he asserts that any original theory that allows Roe is simply plainly incorrect, without arguing the merits of Balkins points, almost simply because it strikes him as unthinkable and odd. Of course his eccentric views, which a majority of legal and political scholars would find more odd and unthinkable, need not be explained in length. In vain you wait to find him apply his "theory" (as far as he has allowed it to develop) to a range of cases which will immediately pop into the head of anyone listening to him as he explains his theory. I suspect it is because he has either not made or cannot made it that far without finding himself in agreement with what he likes to call "a parade of horribles" (though ones that actually happened). Of course that does not stop him from slamming others theory for how they suppoedly fall in line with past cases he considers "horribles" (his reference to Dred Scott and the New Deal cases). So, a waste of time? Yes if by that you are hoping to get Franck to go all the way in an honest explanation of what his theory entails in detail and how it would work out in various hypothetical cases (this is of course how we usually evaluate our theories and need not be a sign of "results oriented" jurisprudence). But no in the sense that these guys on Benchmemo's have needed a public spanking for all too long to expose them for the partisan mental gymnasts they are...