Balkinization  

Monday, August 20, 2007

Ruth Bader Ginsburg, please return your law license

JB

My very enjoyable conversation with Matthew Franck about originalism continues. I noted in my last post that I had promised to say something about Matt's views on individual rights, and in the meantime Matt has helpfully responded to my last post on federal power, which moves the discussion forward. (Matt has been shy about calling me by my first name, but I'd ask him, please, don't stand on ceremony. Together the two of us have had more interesting discussions by now that I've had with many of my colleagues!).

There are many things I would love to spend more time on, including Matt's creative reading of Gibbons v. Ogden (ahistorical and almost certainly incorrect) and his very puzzling theory of what constitutional issues are political questions (I don't think he has a theory yet-- I suspect that, like everyone else, I'll have to wait for his promised book.). But I thought I'd get to the main question that really divides us.

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."

I'm not sure that Matt is correct that the distinction is "untenable and unacceptable" for all other originalists. I can think of at least two offhand-- Ahkil Amar and Randy Barnett-- for whom the distinction is quite relevant to their work.

But in any case, my discussion has been with Matt. 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.

No mainstream politician or judge-- whether liberal or conservative-- could consistently and thoroughly apply the original understandings of federal power or individual rights once they understood the relevant history. They would all have to be "faint hearted originalists," to use Justice Scalia's phrase.

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.

This is the major disagreement between the two of us. In a previous post Matt noted "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?" It is a vice because our Constitution is a key source of political legitimacy. Matt's theory of how we should read our Constitution makes large parts of our system of government illegitimate, and the illegitimacy has been going on for a very long time. Matt's theory of original understanding, strictly applied, wipes out huge chunks of the New Deal, the National Security State, and the Civil Rights Revolution. It wipes out the most significant legal achievements of the twentieth century.

Matt's theory cannot explain why we legitimately have the legal and constitutional structures we do. It severs the connection between the legal and social practices of the American people and their Constitution. It undermines the legitimacy of the American legal system.

Forgive me for suggesting it, but I think this is a vice.

By contrast, the original meaning approach that I advocate can be used by liberals and conservatives alike. It makes sense of our existing political and legal traditions. It shows how and why our constitutional practices, including the ones that most Americans are proud of, are, for the most part, faithful to the Constitution. Liberals and conservatives may disagree about how to use it in particular cases. They may still disagree in good faith about Roe v. Wade and Lawrence v. Texas. This does not trouble me at all. Interpretive method should be a common discourse rather than an algorithm. It should offer a common framework in which people can reason about their common commitments to the Constitution.

The argument I am making is not, as Matt suggests, simply one designed to guarantee results I like. It is an argument of legal coherence or reflective equilibrium of the type familiar to students of moral and political theory. Our goal is to offer a theory of constitutional interpretation that makes the most sense of most of our current legal practices but that we can also use to continue and critique those practices. To do this we start from the assumption that much of our current legal system is legitimate and worthy of respect even if parts are illegitimate and need to be reformed, and then we move back and forth between our theories of interpretation and existing legal arrangements, adjusting our views on each in light of the other. Matt's approach, by contrast is not coherentist, and therefore, I would submit, it is also not very coherent.

Matt has demurred when I asked him what parts of the post-New Deal order he thought were constitutional under his theory, suggesting instead that we focus on specific examples. So let me be specific. In a previous post I asked Matt whether he thought the Fourteenth Amendment guarantees equal rights for women. He responded that Bradwell v. Illinois, which held that Illinois could deny women the right to be lawyers, "was rightly decided." He hastened to add that this "declares nothing on [his] view of women's equality."

As a matter of original understanding-- that is, original expected application-- Matt is probably right. The Framers of the Fourteenth Amendment believed that its guarantees were perfectly consistent with the common law coverture rules, under which women lost all of their rights upon marriage. They could not make contracts, they could not own or convey real property, they could not sue or be sued in their own names, and their husbands had the right to make all important legal decisions for them. Some states had modified a few of these rules by statute by 1868, but others had not. Under the original understanding, states would be free to retain these rules even today.

It's worth noting that Illinois did not deny access to the bar to married women, but to all women. However, the Court did not think this mattered. As Justice Bradley explained in his concurrence

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.


I'm sure Matt does not agree with Justice Bradley's sentiments. But that is not the question. The question is whether our Constitution must be applied today in the way that Justice Bradley and his contemporaries would have applied it. Matt says yes. I say no: The text of the Fourteenth Amendment does not require it, and the principles underlying the text do not require it. Matt, by contrast, believes that the meaning of the text is identical (for purposes of legal interpretation) with its original understanding. I argue that this confuses concepts with their expected applications, and the meaning of a sentence with the expectations of the speaker who uttered it.

Most of the Constitution may have been written long ago, but it is a continuing legal command addressed to us in the present. To apply it in the present we must first understand the concepts that its words point to. If the concepts associated with its words have changed over time, we must apply the old concepts, otherwise we will be engaged in a play on words. So when the Constitution speaks of "domestic violence" in Article IV, it means "riots" not "violence between intimate partners." That is why we care about original meaning.

But because the Constitution is a legal command addressed to us in the present we must apply its concepts in our own circumstances in the present using our present-day judgment. When the Constitution says provide "equal protection of the laws," it tell us to do this now, and from our present perspective. It does not say provide "equal protection of the laws as people in 1866 would have provided it." When the Eighth Amendment says no "cruel and unusual punishments," it asks us to make that determination in the present. The text does not say no "cruel and unusual punishments according to the expectations of 1791."

This is the central disagreement between Matt and myself. Matt's approach delegitimates our government, because it maintains that women have very few rights under the Constitution and that states do not even have to let them become lawyers. (Hence the title of this posting. The nation's most famous legal champion for sex equality could constitutionally have been banned from becoming a lawyer in the first place. At least Thurgood Marshall was allowed to take the bar.) Adhering to Matt's theory of original understanding (as opposed to original meaning) also requires, among other things, that Loving v. Virgina is wrongly decided and that states could keep blacks and whites from marrying each other. To go back to Matt's original question, this is not a virtue of his method. It is a vice.

Matt's best response, I think, is that even if the Constitution does not guarantee women's equality, the political process can and should. Matt does not oppose women's equality. He supports it. But he wants it supported through democratic political means, not through judicial constructions and interpretations, no matter how well intentioned.

Fair enough. But the very same theory of interpretation that Matt champions also disables Congress from protecting women's equality. Matt's theory of original understanding does not simply leave the protection of individual rights up to the political process. It also strongly limits the ability of the federal government to protect these rights.

That is why I asked Matt whether he believed the Civil Rights Act of 1964 was constitutional. Matt did not provide a clear answer to this question. He said that he thought the 1875 Civil Rights Act-- struck down in the 1883 Civil Rights Cases-- was constitutional. I think he is right about that. I think the Civil Rights Cases were wrongly decided at least as to the scope of Congressional power. But the 1964 Act is much broader than the 1875 act and reaches into many more areas of local concern.

The 1875 act banned racial discrimination in places of public accommodations like "inns, public conveyances on land or water, theaters, and other places of public amusement." (It also banned excluding blacks from jury service, but the Court did not strike down that provision). These provisions are substantially the same as those in Title II of the 1964 Act; however Title II also extends to discrimination against religion. (By the way, for the non-lawyers in the crowd, "places of public accommodation" like restaurants and hotels are not owned by the state but by private individuals and corporations; they are called "public" because the common law traditionally imposed on them duties to serve the general public.).

Matt would need to explain why banning private religious discrimination in places of public accommodation would be within Congress's powers under the Thirteenth or Fourteenth Amendments under the original understanding. To do that he would probably have to say something about whether the Bill of Rights was incorporated into the Fourteenth Amendment; he has previously expressed some skepticism on that point. (For the record, I think the evidence for incorporation is quite clear, and I'd like to know why Matt is skeptical). (And by the way, I don't think that the original understanding of Congress's Commerce power would have allowed Congress to prohibit racial or religious discrimination in places of public accommodation, and as far as I am aware, no one thought so either when the Civil Rights Cases were litigated.)

More important for present purposes, Title VII of the 1964 Act goes well beyond the 1875 Act. It bans discrimination in terms and conditions of private employment on the basis of "race, color, religion, sex, or national origin." Title VII is the nation's foremost anti-discrimination law, and the model for other federal anti-discrimination laws banning discrimination against the aged and the disabled. If Title VII is beyond Congress's powers under the original understanding, many other anti-discrimination laws will fall as well.

I don't think Matt can justify Title VII of the Civil Rights Act under the original understanding of section two of the Thirteenth Amendment, section five of the Fourteenth Amendment, or the Commerce power. (Remember, here we are using his theories of original understanding, not my theory of original meaning).

The original understanding of section two of the Thirteenth Amendment might give Congress the power to ban all private racial discrimination in employment as a badge or incident of slavery (The Supreme Court thought so in Jones v. Alfred Mayer, Co., although actually I doubt the original understanding would have reached that far). However, the original understanding of section two would not give Congress the power to ban all private employment discrimination on the basis of religion and sex, and probably not national origin either.

Under the original understanding, section five of the Fourteenth Amendment might have given Congress the power to ban racial discrimination in places of public accommodation (for example, if one accepts Justice Harlan's argument about how to read the state action requirement.). Nevertheless, under the original understanding, Congress's section five powers would not have given it the power to ban purely private racial discrimination in employment. Nor would section five have given Congress the power to ban purely private discrimination against women or against religious groups.

This leaves us with the Commerce Power. I am fairly confident that the original understanding of the Commerce Clause in 1787 did not give the federal government the power to regulate the terms and conditions of private employment contracts throughout the country. If Matt knows of historical sources to the contrary, I'd be delighted to learn about them.

Matt has one other response, I think. I don't know whether this is what he would say, but it occurs to me as at least a possibility. Matt can argue that even if Congress couldn't pass Title VII of the 1964 Civil Rights Act to prohibit race, sex, and religious discrimination in employment, state and local governments could. That is, Alabama, Georgia, and Mississippi could still ban race, sex, and religious discrimination. They might not get around to it in 1964, but they would do so eventually. What the federal government could not do, however, is secure equal civil rights for women or blacks or religious minorities in these states before these states wanted to. Under this view, it was wrong of Martin Luther King to seek a civil rights bill from Congress in 1964. He should have tried to get Governor George Wallace and the Alabama legislature to pass one.

Comments:

Professor Balkin:

No mainstream politician or judge-- whether liberal or conservative-- could consistently and thoroughly apply the original understandings of federal power or individual rights once they understood the relevant history. They would all have to be "faint hearted originalists," to use Justice Scalia's phrase.

While is may be too much to ask for today's judiciary to reinstate the Constitution as it was prior to the New Deal, it is not too much to ask that the judiciary apply original meaning as informed by original understanding to issues which have not been etched in stone by the passage of time.

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.

Only if you disagree with the original understanding. It is far from clear that a majority of today's citizenry would disagree with the original Constitution on most issues.

This is the major disagreement between the two of us. In a previous post Matt noted "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?" It is a vice because our Constitution is a key source of political legitimacy. Matt's theory of how we should read our Constitution makes large parts of our system of government illegitimate, and the illegitimacy has been going on for a very long time. Matt's theory of original understanding, strictly applied, wipes out huge chunks of the New Deal, the National Security State, and the Civil Rights Revolution. It wipes out the most significant legal achievements of the twentieth century.

Are you sure the citizenry does not view as illegitimate many of "the most significant legal achievements of the twentieth century" rather than the original Constitution?

If you put the bureaucracy, withholding taxes, gun control laws, Miranda, unfettered abortion, the exclusionary rule, nearly every separation of church and state decision, discrimination suits based on different outcomes, regulatory property seizure, eminent domain to raise taxes, ect up to a national popular vote, I would wager that nearly all of these "achievements" (or more correctly court enacted laws) would lose, many decisively.

You are correct that the courts immediately following the enactment of the EPC employed their own activism to truncate the plain meaning of the term "equal." I would suggest that problems like this can be avoided by simply relying on the text first and then original understanding only to the extent that it does not conflict with that plain meaning. Since the term equal meant the same thing today and when the EPC was enacted and that meaning is perfectly clear, then there is no need to use case law which upheld unequal results to determine the meaning of equal. Rather, use of the original meaning of equal could be used to reverse prior mistaken case law the same way we can use it to deal with modern mistaken case law.

As to returning the Commerce Clause back to something actually resembling commerce, the federal government can still compel the States to enact laws like Civil Rights Act of 1964 by simply holding federal assistance to the states hostage to the enactment of such laws.

Instead of putting so much time and effort into finding creative ways to undermine the Constitution, perhaps more would be gained by coming up with creative ways to operating within the Constitution.
 

Don't do it, Matt! Trust me, because it didn't do Professor Kmiec any good to explain himself in this echo chamber either.
 

I wouldn't mind repealing the 19th Amendment either ; )
 

Those interested can also find discussion of this debate here.
 

For those of us interested in discussing Professor Balkin's post here, at Balkinization, I will also note that his final swipe at Professor Franck (invoking no less than a fictional MLK Jr. groveling to George Wallace and the Alabama legislature) is disingenuous at best. It is certainly possible that Alabama would have voluntarily, and more peacefully, have desegregated.

In the late 1970s Wallace became a born-again Christian, and in the same era apologized to black civil rights leaders for his earlier segregationist views, calling these views wrong. He said that while once he sought power and glory, he realized he needed to seek love and forgiveness. In fact, his final term as Governor (1983–1987) saw a record number of black Alabamians appointed to government positions.

http://en.wikipedia.org/wiki/George_Wallace#Change_of_views_before_final_term

Now, did Wallace change in spite of the Civil Rights Act, or because of it? Maybe that's like the "which came first: the chicken or the egg" question. As an analogy, however, I would dare say that abortion rights would be much more secure today in most U.S. States had Roe v. Wade not upset the natural progression of events. We'll never know though.
 

"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.'"

I don't think this is quite fair. The distinction that Franck says is untenable is that between original meaning and original understanding, not the distinction between original meaning and original application. I don't think Franck identifies himself anywhere as an original-expected-application Raoul-Berger type, does he?

I general, I like the distinction between meaning and application--which I would gloss as the distinction between sense and reference--but I'm not wild about distinctions between orignial "intent" or "understanding" and meaning, because intent and understanding are slippery. We can talk about the originally-intended sense, or the originally-intended reference, or the originally-understood sense, or the originally-understood reference, or the originally-indended meaning, or the originally-intended application, or the originally-understood meaning, or the originally-understood application. What's doing the work in this list are the distinctions between sense and reference and between meaning and application, not anything about "intent" and "understanding." So I don't think it's a good idea for Franck to define his view in terms of original understanding, but I also don't think it's proper for Balkin to assume that that means original application.
 

On Bradwell, we should remember that there was a dissent from Chief Justice Chase, albeit without opinion, and that Senator Matthew Carpenter's argument on her behalf--based on privileges or immunities, not equal protection--was not crazy. So suggesting that the framers all thought the Fourteenth Amendment was perfectly consistent with any sort of sex discrimination probably isn't right.

And of course, saying a right isn't of federal constitutional stature doesn't mean the right shouldn't be protected by state legislatures, or state constitutional provisions. So the title of the post's a bit off.
 

Exactly correct, Chris. Even if women were not given the right to vote, that doesn't mean each State couldn't license them to practice law : )
 

"Even if women were not given the right to vote, that doesn't mean each State couldn't license them to practice law : )"

I don't think that's crazy at all in a world where universal suffrage among adults isn't taken for granted. There might be property requirements for voting, for instance, that wouldn't prevent someone from being a lawyer. For that matter, the Fourteenth Amendment surely prohibited occupational restrictions on the freedmen, even though it didn't give them the vote.
 

I must say I'm a bit puzzled as to why one would accept original intentions or expectations over original meanings, if I understand these terms correctly. Perhaps when the writers of certain Amendments wrote phrases like "Congress should pass no law..." or "equal protection of the law" they never could have seen that these words given their plain meaning would lead to the conclusions that they, well, plainly do. All's the pity for their poor choice of words, they should have said what they meant. It seems bizarre for judges to bypass what these words not only plainly mean today but also what the actual words themselves plainly meant at the time ("Congress", "no" and "law" were all surely understood back then to refer to the same concepts we have for them now). That, due to the prejudice of the time some applications of these concepts were foggy to the people who wrote them should not prevent us from enacting what they indeed wrote...
 

"Matt did not provide a clear answer to this question. He said that he thought the 1875 Civil Rights Act-- struck down in the 1883 Civil Rights Cases-- was constitutional. I think he is right about that. I think the Civil Rights Cases were wrongly decided at least as to the scope of Congressional power. But the 1964 Act is much broader than the 1875 act and reaches into many more areas of local concern."

i am not sure if this is exactly what Prof Franck is saying. he worded it very unusually -
"For the record, I think the Civil Rights Act of 1875 was unconstitutionally struck down by the Supreme Court in 1883. " this is not (on its face) a statement that the act was constitutional, but instead a opinion that the court acted unconstitutionally in striking it down. Whether the law was constitutional is not addressed, instead, the Court acted beyond its power in striking the law down.

which leads to my concern with prof Franck's theory as it is currently laid out - who determines what's constitutional? unless i'm missing something big here, Prof Franck seems to argue that Congress can pass unconstitutional laws, the Court has no power to strike them down, and everything should get sorted out politically. now, i understand that in theory, but what is the purpose of a written constitution then? doesn't it simply become advisory? and where is the limit? if Congress passed a law that there would be no more elections, and that each representative can appoint a successor every two years (presumably himself or herself), can the Court strike it down? or does it get handled politically - which would apparently have to be "politics by other means"?
 

Chris:

I am saying that States COULD license women to vote, even if said women could not vote. Sorry for the double (or, was it triple?) negative or any confusion. I think we agree on this point.
 

Oh, sorry. I thought the smiley indicated irony.
 

No, that was just in case any women lawyers out there read my comment and thought I was also advocating taking away their law license . . .
 

"if Congress passed a law that there would be no more elections, and that each representative can appoint a successor every two years (presumably himself or herself), can the Court strike it down? or does it get handled politically - which would apparently have to be "politics by other means"?" Excellent point. I once asked Matt such a question when I worked with him, relating to what would happen if the Congress passed some law constraining the Executive and the Executive continued to defy them. He said it needed to be worked out "politically." I said, "like the way Parliament and the King worked it out in the Puritan Revolution?" He assured me this was but a "parade of horribles" (Matt likes certain phrases he uses often to plug holes in arguments) not worth considering. I also asked the same thing about his First Amendment jurisprudence, whether Congress and an Executive could ban speech by Rush Limbaugh, Sean Hannity, or any right leaning pundit/press, as seditious right before an election. Since he thinks the court can't step in, how would this be solved "politically?" Again, he assurred me I was conjuring up a horrible that was inconcievable and not worth talking about. That strikes me as intellectual dodging. One man's "parade of horribles" is another man's reasonable hypothetical, in fact since similar things have happened in history they srtike me as all too reasonable...
 

I agree with Bart that it is possible to apply originalism-- at least at the Supreme Court level!-- on a prospective basis. (I should note that one problem with originalism is that there's no way busy District Courts and the lawyers who practice before them can do it. It's one thing for Justice Thomas and his four law clerks to go digging into what happened in the 1780's. It's another thing to expect that to happen when a constitutional issue arises at the trial court level. And that means you are going to have lots of reversals and retrials.)

But the problem with Bart's position is it isn't what the right wing wants. They want to overturn Roe v. Wade. And to do that with originalism, you have to do it on a retrospective basis. And once you do that, then everything else is in play too, including the New Deal, civil rights, women's rights, gay rights, and all the other issues that Professor Balkin talks about.
 

You should tell Arne that, Eugene, as he seems to think torture because of a ticking-timebomb scenario is a "parade of horribles" as well.
 

Dilan:

Restoring Constitutional law that was twisted out of shape via the Roe decision is not "retrospective," any more than it would be judicial "activism."
 

Charles:

That's a meaningless statement. Why is overturning Roe a "restoration" while overturning Wickard v. Filburn and United States v. Darby, or Katzenbach v. McClung and Heart of Atlanta Motel, or Craig v. Boren, or Miranda, or Mapp v. Ohio, or Lawrence v. Texas, or Brown v. Board of Education, or Bolling v. Sharpe, or Loving v. Virginia, or Adarand v. Pena, or Griswold v. Connecticut and Eisestadt v. Baird, or Virginia Pharmacy, or any other case that is allegedly inconsistent with originalism, a bridge too far?

There isn't anything unique about Roe. Roe is a case that was decided using nonoriginalist reasoning, but which plausibly followed and extended Griswold and Eisenstadt. There were plenty of other cases that were decided with the exact same style of judicial reasoning as Roe.

There is also nothing wrong with a conservative wanting to overturn Roe, either because he or she doesn't like the result or doesn't like the reasoning, or both.

But once you are talking about overturning Roe, you get out of the realm of originalism and into the realm of stare decisis. I.e., what is the principle for what nonoriginalist cases get overturned and what cases don't?

And at that point, you will pardon us liberals for thinking that maybe, the fact that you guys don't like abortion very much has something to do with what's going on here? Really, there's no way that Roe is any bigger offense to the original meaning that Adarand or Bolling is, as it is perfectly clear that race-based measures to help blacks were viewed as consistent with equal protection, and it is also perfectly clear that the 14th Amendment wasn't supposed to apply to the federal government and there was no federal equal protection clause. Yet, as far as I know, NO conservatives are clamoring for Adarand and Bolling to be overturned.

Originalism on a prospective basis, as Bart argues for, has a certain validity, because if judges could really hold themselves to it, it might act as a constraint. (I don't really believe that judges will be able to do that, but that doesn't mean Bart is wrong in theory.) But once you start talking about overturning nonoriginalist decisions, which decisions you are going to choose to overturn has to do with your politics. And there goes the constraint out the window. Talking in terms of a "restoration" doesn't change that fact.
 

Neither Adarand nor Bolling have resulted in the deaths of 40 million plus. that's where I draw the line for now.
 

Charles, that's a perfectly plausible response, but it concedes my point. What you are really saying is that because the policy outcome of Roe was so bad, from your point of view, it should be overturned and the other cases should not be.

That's not any different from another originalist saying that because Roe emancipated 150 million women, it should be spared. At that point, originalism is no longer constraining the judge as advertised. Rather, we are picking and choosing which precedents from the nonoriginalist canon we are going to keep and which ones we are going to overturn, based on policy grounds and not originalism.

Look, I believe that what you are saying is exactly what Scalia and Thomas are doing. They intensely dislike abortion, and therefore cannot accept any argument that there is any legitimate societal reliance on Roe that could justify keeping it.

But the alleged virtue of originalism is that it is supposed to stop us from doing that. If you apply it only prospectively, it might work, but the cost is you'd have to keep Roe v. Wade. If you apply it retrospectively, you can eliminate Roe, but you have to eliminate a lot of other decisions that people don't want eliminated. And if you apply it retrospectively only to eliminate decisions that you think are abominable, then you are no longer constrained, because you are picking and choosing which decisions remain good law based on policy considerations.
 

Yours is the same faulty reasoning that would erroneously conclude as follows:

A) I am a conservative who defends against change,

B) Roe v. Wade has been the law of the land for 35 years,

therefore

C) Conservatives defend against changing Roe v. Wade

Don't you see that returning to the status quo ANTE is the actual conservative position in regard to abortion in American jurisprudence?
 

That certainly does NOT concede your point.
 

Dilan said...

I agree with Bart that it is possible to apply originalism-- at least at the Supreme Court level!-- on a prospective basis....But the problem with Bart's position is it isn't what the right wing wants. They want to overturn Roe v. Wade. And to do that with originalism, you have to do it on a retrospective basis.

Actually, my only limitation was that it was unreasonable to expect the judiciary to reverse precedent which time has etched in stone with a national concensus like, for example, the Civil Rights Act. However, Roe v. Wade is hardly etched in stone. It is an awfully reasoned decision which has come under attack even by abortion supporters.

I should note that one problem with originalism is that there's no way busy District Courts and the lawyers who practice before them can do it. It's one thing for Justice Thomas and his four law clerks to go digging into what happened in the 1780's. It's another thing to expect that to happen when a constitutional issue arises at the trial court level. And that means you are going to have lots of reversals and retrials.

If the Courts make it clear that they will again apply the Constitution as law, the lawyers bringing the cases will do the work.
 

Don't you see that returning to the status quo ANTE is the actual conservative position in regard to abortion in American jurisprudence?

You are ignoring the point. Why is that the actual conservative position with respect to abortion, but not with respect to race-based affirmative action, or the application of the equal protection clause to the federal government, or the commerce clause, or sex discrimination, etc.?

THAT's the issue that is purely a policy issue. Indeed, you admitted it. You said the difference was that (in your view) abortion killed 40 million people. That's a policy argument.

Again, I am not saying you can't make the move you make. I am saying once you make that move, you are no longer constrained by originalism, because you are picking and choosing what nonoriginalist precedents to overturn and what not to.
 

Actually, my only limitation was that it was unreasonable to expect the judiciary to reverse precedent which time has etched in stone with a national concensus like, for example, the Civil Rights Act. However, Roe v. Wade is hardly etched in stone. It is an awfully reasoned decision which has come under attack even by abortion supporters.

That's not a distinction, Bart. Miranda fits that same description. So does Wickard v. Filburn. For heaven's sake, so does Brown v. Board of Education! (Read, for instance, Herbert Wechsler's famous article on neutral principles.)

As for what is "etched in stone", that's a reasonable criteria for stare decisis, but it is quite flexible and doesn't create a real constraint. Many feminists would argue that legal abortion is very much part of the social fabric and is etched in stone. And many conservatives would argue that not only is Roe not etched in stone, but Griswold isn't either. Some would argue that the commerce clause cases aren't etched in stone.

Again, I don't object to your line of reasoning, Bart. I object to the contention that there is a real CONSTRAINT on judges putting their policy judgment into law once this reasoning is accepted.

If the Courts make it clear that they will again apply the Constitution as law, the lawyers bringing the cases will do the work [to implement originalism].

Have you ever done trial practice, Bart? We barely have time to draft short memoranda with controlling recent caselaw (sometimes) or a cite to a treatise, and now we are going to go back and examine the materials at the time the Constitution was adopted? And how much are we going to bill our clients for all those trips to the law library.

Sorry, originalism is hard work. (Indeed, the intellectual rigor of the enterprise is actually one of its virtues.) And there's no way that District Courts can do it. The most you can hope for is that the appellate courts will announce some relatively-easy-to-apply rules that are usable. But when an issue of first impression comes up, there's going to be lots of reversals because District Courts just can't do this, and even if they can, they are unlikely to do it with the same depth as appellate courts with teams of clerks and lighter caseloads.
 

Dilan said...

BD: Actually, my only limitation was that it was unreasonable to expect the judiciary to reverse precedent which time has etched in stone with a national concensus like, for example, the Civil Rights Act.

That's not a distinction, Bart. Miranda fits that same description. So does Wickard v. Filburn. For heaven's sake, so does Brown v. Board of Education! (Read, for instance, Herbert Wechsler's famous article on neutral principles.)


dilan, I am making an observation of human nature, not principle.

I do not reasonably expect the judiciary to declare half the modern bureaucratic state to be unconstitutional, but I expect self declared originalists to reverse unconstitutional precedent where ever they can. The Roberts approach of gradually chipping away at previously mistaken precedent is probably the best this original meaning proponent can expect.

BD: If the Courts make it clear that they will again apply the Constitution as law, the lawyers bringing the cases will do the work [to implement originalism].

Have you ever done trial practice, Bart?


That is my practice.

We barely have time to draft short memoranda with controlling recent caselaw (sometimes) or a cite to a treatise, and now we are going to go back and examine the materials at the time the Constitution was adopted? And how much are we going to bill our clients for all those trips to the law library.

That is one of the reasons why I hung out my own shingle and left the big town firms. I do not like to do a half assed job because of a lack of time or firm billing pressures. I find that good motion practice largely wins the case before we reach the courthouse for trial. Most of my opponents are too busy, lazy or simply do not like the research, so I win most of my motions. Many of my clients are individuals or small businesses, so I do not bill them for the actual the work I put in on motions, but I prefer to do it right and win even if it cuts into my billing. I make some of it up later by using previously drafted briefs in other cases.

Sorry, originalism is hard work. (Indeed, the intellectual rigor of the enterprise is actually one of its virtues.)

I agree, but professors and public interest attorneys with far more time than you or I have done a great deal of my work for me. With the advent of electronic databases, you can leverage an amazing amount of research fairly quickly.
 

The question is whether our Constitution must be applied today in the way that Justice Bradley and his contemporaries would have applied it. Matt says yes. I say no: The text of the Fourteenth Amendment does not require it, and the principles underlying the text do not require it.

The problem in Balkin's argument is this: The answer may be no, but it has nothing to do with "original expected application" and "original understanding". If you read any historical context out reading the Constitution and rachet up the level of generality, you can get it to mean anything. So, sure "the text" when purely decontextualized and ahistoricized at a high level of generality, can mean the exact opposite of what it was ratified to accomplish. But this is pure sophist, relativistic mishmash. No one who ratified the Constitution -- either the Framers or anyone in the public -- was endorsing postmodernism. Or the work of Hans-Georg Gadamer. The reason the answer is no is simply because our society has changed and we are free to reinterpret the Constitution. But the Constitution does not demand that reinterpretation, and its historical meaning has not changed. What it originally meant is always what it originally meant. If Balkin wants to reinterpret the Constitution to get better results, that's fine, but it isn't originalism. The problem here is that Balkin is claiming to be an originalist when he isn't. He may be a very sophisticated interpreter of the Constitution whose views are worthy of consideration and perhaps are more erudite, coherent, consistent, and appealing than Franck's, but Balkin is not an originalist. The sad part of this exchange is that Balkin is pretty much arguing "I am an originalist because I am smart enough to patch together an argument that convinces some people who are not originalists that I am one". This is postmodernism at its worst. Richard Rorty once said, "The truth is what your contemporaries let you get away with." Balkin has changed it to, "Originalism is what your contemporaries let you get away with claiming is originalism." I wonder if Balkin has ever read 1984, because he seems to be trying to bludgeon Franck into conceding that 2+2=5.
 

I don't understand what is so inherently horrific about a system where the states are much more loosely bound to each other than they are now. Sure it seems cruel to tell MLK to take civil rights up with the Alabama legislature - with the ability of to leave the south, blacks would still have been far better off than many living in the Soviet Union or other places around the world at the time.

Attacking a system of government based on a result it would have produced at a certain moment of history is a rather narrow approach.

--

The larger point about the divergences between American society as it is and American society as it was envisioned speaks more to the Court's acquiescence and active participation in a long project to amend the constitution without using Article V. It is precisely because our current system would be unfathomable to the ratifiers of the Constitution (and later amendments) that our current Constitution should not read the way it does (or alternatively we should not govern the way we do.) Either way they should be consistent as a matter of republican respect for the rule law.

Bringing woman into full citizenship should have been a constitutional moment, not a legislative or judicial one. How likely is it that the ERA would have failed to be ratified (or taken so long to be introduced) had the Court not gone most of the way there anyway?

Expanding the federal power to regulate commerce from preventing interstate tariffs to comprehensive regulations of manufacturing standards and banning entire categories of goods should have been a constitutional movement - with a long, painful, national dialog that would have entailed – rather than a hundred year creep of judicial slight of hand.

If and when this country ever comes to reasonably comprehensive consensus that abortion is a fundamental right, the people of the several states should place it in the constitution explicitly where all can see.

Yes, Article V is slow and cumbersome compared to evolving application of original meaning by a cast of black robbed wise men, but it ensures at the end of the day that any man can read his constitution and understand exactly how his government works and what rights he possesses. It ensures that the judiciary is a true check on the political branches rather than simply haphazard manifestation of transient political will.

Bradley
 

Sure it seems cruel to tell MLK to take civil rights up with the Alabama legislature - with the ability of to leave the south, blacks would still have been far better off than many living in the Soviet Union or other places around the world at the time.

I've never understood this "vote with your feet" argument. For one thing, it ignores basic human psychology: "all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed."

The reason this is true should be obvious. All life involves trade-offs. There are good and bad aspects to every place one might live. If we allow someone to recommend leaving because of any one particular flaw, then flaws can never be corrected, only suffered.

The other reason is that the argument cuts both ways. If racists in the South didn't like the new enforcement of equal protection, they could have left just as easily as the oppressed blacks. South Africa was beckoning them.

Expanding the federal power to regulate commerce from preventing interstate tariffs to ... banning entire categories of goods should have been a constitutional movement...

The power to ban was upheld in 1807 when Congress imposed Jefferson's Embargo. If the Republican Congress and Executive (Jefferson and Madison) imposed and supported the ban, and the Federalist judiciary (Marshall) upheld it, I fail to see how anyone could argue that the original understanding differed.

Yes, Article V is slow and cumbersome compared to evolving application of original meaning by a cast of black robbed wise men, but it ensures at the end of the day that any man can read his constitution and understand exactly how his government works and what rights he possesses.

Anyone can do so today. No text can be read without context. The reading today just requires an understanding of our society today rather than in 1789.
 

Mark Field said...

I've never understood this "vote with your feet" argument. For one thing, it ignores basic human psychology: "all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed."

How fatalistic and contrary to American culture.

In reality, millions of Americans routinely vote with their feet to avoid bad government and to gain a better life. See the migration of African Americans from the Jim Crow South and now back again with millions of others leaving Blue State misgovernance to gain Red State economic opportunity.
 

Mr. Field:

Did you "understand" the argument above that Governor Wallace, in fact, did apologize to black civil rights leaders for his earlier segregationist views, admitting these views were "wrong"?

Dilan:

I think the "actual conservative position" with respect to abortion is the same as with respect to race-based affirmative action (as Bart pointed out, Chief Justice Robert's gradual chipping away at each is probably the best we can expect for the foreseeable future -- unfortunately, neither Stevens nor Ginsburg retired this summer). Perhaps it will be easier this way: which specific "nonoriginalist precedents" don't you think I want to overturn?
 

Charles:

You are missing my point on race based affirmative action. Originalism informs us that the 14th Amendment was originally: (1) not understood to apply to the federal government and (2) not understood to bar race-based government action including direct monetary aid to assist blacks. I should add that this really isn't controversial, although some originaists quibble a little bit with (2). Nobody argues with (1).

So a consistent originalist would overturn Adarand v. Pena and permit the federal government to impose race-based affirmative action programs.

Again, though, most modern conservatives support Adarand, which bars federal race-based affirmative action, and never even bother to explain the contradiction between this and their espousal of originalism.

I am just telling you, you can't escape from picking and choosing, unless you are willing to keep all the nonoriginalist precedents and live with Roe v. Wade or overturn all the nonoriginalist precedents and live with federal race-based affirmative action along with a lot of other things that I listed in my post.

And if you respond by picking and choosing, you are no longer constrained by originalism.
 

I do not reasonably expect the judiciary to declare half the modern bureaucratic state to be unconstitutional, but I expect self declared originalists to reverse unconstitutional precedent where ever they can.

That's fine, Bart, but don't then claim that originalism can act as a constraint. Because once they start picking and choosing what stays and what goes, they are putting their politics into their judging just like everyone else does.

That is one of the reasons why I hung out my own shingle and left the big town firms. I do not like to do a half assed job because of a lack of time or firm billing pressures. I find that good motion practice largely wins the case before we reach the courthouse for trial. Most of my opponents are too busy, lazy or simply do not like the research, so I win most of my motions. Many of my clients are individuals or small businesses, so I do not bill them for the actual the work I put in on motions, but I prefer to do it right and win even if it cuts into my billing. I make some of it up later by using previously drafted briefs in other cases.

I don't buy that you can really do the type of originalism that the Supreme Court does in motions before trial courts. There are page limitations. You have to attach unfamiliar authorities for the Court. This stuff is mostly NOT online-- dictionaries from 1779, colonial-era statutes, legislative debates, etc.

There's no way a District Court can get a handle on that stuff even if it is provided to it, and there's no way most trial lawyers can provide it for them. This is a domain for appellate courts only.
 

I will definitely go back and re-read Adarand v. Pena then and let you know if a consistent originalist has to overturn or not.
 

Dilan said...

BD: I do not reasonably expect the judiciary to declare half the modern bureaucratic state to be unconstitutional, but I expect self declared originalists to reverse unconstitutional precedent where ever they can.

That's fine, Bart, but don't then claim that originalism can act as a constraint. Because once they start picking and choosing what stays and what goes, they are putting their politics into their judging just like everyone else does.


Good point. I believe that Justice Scalia made a similar point in a couple concurrences criticizing the Roberts incremental approach. Better to just get rid of bad rubbish in its entirety.
 

O.K., Dilan, I've re-read the opinion and no one dealt with the 14th Amendment being misapplied to the federal government rather than just the States. In fact, Scalia's concurrence just about perfectly states my position:

"I join the opinion of the Court, except Part III C, and except insofar as it may be inconsistent with the following: In my view, government can never have a "compelling interest" in discriminating on the basis of race in order to "make up" for past racial discrimination in the opposite direction. See Richmond v. J. A. Croson Co., 488 U.S. 469, 520 (1989) (Scalia, J., concurring in judgment). Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual, see Amdt. 14, §1 ("[N]or shall any State . . . deny to any person" the equal protection of the laws) (emphasis added), and its rejection of dispositions based on race, see Amdt. 15, §1 (prohibiting abridgment of the right to vote "on account of race") or based on blood, see Art. III, §3 ("[N]o Attainder of Treason shall work Corruption of Blood"); Art. I, §9 ("No Title of Nobility shall be granted by the United States"). To pursue the concept of racial entitlement -- even for the most admirable and benign of purposes -- is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

It is unlikely, if not impossible, that the challenged program would survive under this understanding of strict scrutiny, but I am content to leave that to be decided on remand."

So, what exactly are Nino and I missing again?
 

Mortimer
So what then is the original meaning of a text? The First Plainly says that "Congress shall make no law respecting...” Surely in the framing the word Congress referred to the legislative body, make meant pass, and no meant no (did it mean yes?). Perhaps they had an idiosyncratic way of saying "no horse saddles please" or "no potato with my steak" but expected that they would get, say, cheap girls saddles or a small mashed potato. Still, whatever their ideas about how their laws would be applied, however they understood the concepts they placed in the Amendments, the Amendments had originally widely understood meanings. It strikes me that how the Framers imagined the concepts being applied must fall to the plain meaning of the original text. If they did not want "Congress" to "make" "no" law on these subjects, though they expected that some such subjects would still be targets DESPITE the language written down and voted on, then what are future generations to go on? The written text is the actual law, containing the concepts put into them. We'd be fool indeed to try to wade into what is often the murky and un-unified "original expected application" of the laws and to ignore the plain original meaning of the text.
Hidebound and lacking in imagination most people who passed the 14th, though they put smack in it that it guaranteed equal protection of the law, probably could not foresee a woman challenging it to become a lawyer. In their day this was so unthinkable. However, the text plainly states a concept "equal protection" that is to apply to all "citizens." Could the Framers not do the logic work here on this hypothetical (which was probably not held even in the minds of many at the time), why are we bound to follow in their missteps. Using what the words "equal" and "protection" meant then, and that women were indeed "citizens" then logic compels one to see that women-citizens must be treated equally under the laws of the state. And denying a woman the right to practice law would be plainly unequal.
Mind you we have to respect anything we see as a "mistake" in the TEXT given us by the Framers. If we don't like it we should change it. But why be bound to what the Framers conceived of as the limits of the concepts they were plainly writing down for us, future generations, to follow? That seems nutty.
 

This comment has been removed by the author.
 

Could the Framers not do the logic work here on this hypothetical (which was probably not held even in the minds of many at the time), why are we bound to follow in their missteps. Using what the words "equal" and "protection" meant then, and that women were indeed "citizens" then logic compels one to see that women-citizens must be treated equally under the laws of the state.

Problem is, Breyer uses the same logic to uphold McCain-Feingold. Which is a law passed by Congress that abridges freedom of speech.

So much for your argument.
 

But why be bound to what the Framers conceived of as the limits of the concepts they were plainly writing down for us, future generations, to follow? That seems nutty.

Apparently, you did not read the entirety of my first post. So much for your ability to interpret meaning.
 

"So, sure "the text" when purely decontextualized and ahistoricized at a high level of generality, can mean the exact opposite of what it was ratified to accomplish." You can bend a text farther than the "expectations" of those who wrote it, but there are limits. The text is the limit. The "originals" wrote it, and why is it crazy to find out what the words used in the text meant at the time and logically go from there? But to ask yourself, well, if the folks wrote "no law" they never meant "no law" in situation x, y and z does not this make one have to discern the much more nebulous mental states of the Framers (and there were more than a few with some diversity on the issue) rather than the obvious directions of the text. For example, written what they had, many people had a view of 1st Amendment issues being enforced extra-judiciary via state legislatures (think of the Nullification Acts in response to the Alien and Sedition Acts). Perhaps that is how they read the Constitution as working. It is of course an incorrect way of reading it, as Marshall argued. You guys have written we have this written constitution. Now people seem to violate its provisions. If it means anything it means we have to review these acts to see if they pass constitutional muster...Jefferson et al jumped up and down, b/c they never saw that document working that way. Pity for them, because that is the most logical way to read THE DOCUMENT, which is, unlike their expectations, what they wrote down and bequeathed to us...
 

Eugene,

The portion you are unable to read, apparently, is right in the center:

"The reason the answer is no is simply because our society has changed and we are free to reinterpret the Constitution. But the Constitution does not demand that reinterpretation, and its historical meaning has not changed. What it originally meant is always what it originally meant. If Balkin wants to reinterpret the Constitution to get better results, that's fine, but it isn't originalism."

Your insistently incoherent reading of my post only serves to contradict your claim that "The text is the limit." Apparently, self-serving misinterpretation, like human stupidity, knows no bounds.
 

Charles said [quoting Scalia]:

Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual, see Amdt. 14, §1 ("[N]or shall any State . . . deny to any person" the equal protection of the laws) (emphasis added), and its rejection of dispositions based on race, see Amdt. 15, §1 (prohibiting abridgment of the right to vote "on account of race") or based on blood, see Art. III, §3 ("[N]o Attainder of Treason shall work Corruption of Blood"); Art. I, §9 ("No Title of Nobility shall be granted by the United States"). To pursue the concept of racial entitlement -- even for the most admirable and benign of purposes -- is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

First, look at Scalia's quotation of the 14th Amendment. The 14th Amendment CLEARLY applies ONLY to state governments "no state shall". Indeed, it contains the same due process clause that was already present in the 5th Amendment (thereby applying the concept of due process to the states) but does not contain a clause applying the new concept of equal protection back to the federal government.

In Korematsu and Bolling, the Court, without any discussion, held that the Due Process FIFTH AMENDMENT contains an "equal protection component". This is completely created out of whole cloth. If "due process" meant "equal protection", you wouldn't need a separate equal protection clause in the 14th Amendment.

Scalia KNOWS this, which is why he reaches to other parts of the Constitution. But the 15th Amendment applies ONLY to voting. The Corruption of Blood clause applies ONLY to laws that punish people for being related to criminals. And NOBODY would seriously claim that the Title of Nobility clause bars race discrimination by the federal government!

Indeed, the original constitution CLEARLY PERMITTED race discrimination. Most obviously, it permitted slavery, the importation of slaves, and the repatriation of fugitive slaves. Further, the due process clause restricted the deprivation of a person's property, including that person's slaves. But going beyond that, EVERYONE believed, that, for instance, the Constitution permitted a segregated military.

So you can't point to the corruption of blood or title of nobility clause and say this means all race discrimination by the federal government was unconstitutional.

FURTHER, you have the matter of Section 5 of the Fourteenth Amendment, which grants an enforcement power to Congress. Using this power, Congress created the Freedmen's Bureau, which gave out race-based benefits to blacks. In other words, we not only have clear evidence that the original intent of the Constitution was to PERMIT race discrimination, but the 14th Amendment, rather than barring federal race discrimination, was believed to EMPOWER Congress to impose race-based affirmative action to benefit the victims of discrimination.

Scalia's argument is very weak. He knows all this but hates affirmative action, so he cites provisions of the Constitution that he plainly knows don't bar race discrimination.

For a good discussion of this, you might look at a 2001 article by Judge Michael McConnell, a conservative and committed originalist who says that Bolling v. Sharpe (the decision desegregating the District of Columbia schools) should have been decided on statutory grounds because there was no basis for holding that the Constitution barred all race discrimination by the federal government (including the District of Columbia).
 

Jack Balkin said,
>>>>>> The central disagreement between Matt and myself has been my distinction between "original meaning" and "original expected application." <<<<<<<

I am not exactly sure what you mean by "original expected application," but I think that you really mean "current expected application." IMO you think that being an originalist is chic and so you try to give the appearance of being an originalist even though you are not one.

IMO originalism sucks -- and one of the reasons is that it leads to distortions and fabrications of history.

Also, it would help if the time stamps on the comments gave the dates (this option is available on Blogger.com) so that the age of comments and comment threads could be determined.
 

Morty
My you're an abrasive little fellow! In your first post you argue that whatever JB is up to it is not originalism. And your argument seems to be that it can't be because he finds meanings that are plainly at odds with what he calls original expected application. But JB's whole point is that a theory of originalism that rests on original expected applications is incorrect. This is why I pointed out to you that one can certainly claim to be doing originalism in the sense of adhering to (and being limited to) the original meaning of the text of the Constitution. The original expected application of the words "Congress shall make no law prohibitng freedom of speech" was oddly consistent with Congress doing just that plenty of times. But the original meaning of all those words, taken as text, is clearly and correctly understood as that Congress shall make no laws prohibiting freedom of speech. JB does the same for the 14th Amendment, namely that while the original expectation was that "equal protection of the laws" for all "citizens" was not originally expected to be applied to womens rights (for example), that the original meaning of the words and concepts "citizen", "equal" etc., demonstrate that a correct reading of the text would defend women's rights. It seems you've misunderstood JB's entire argument on this, and then proceed to beg the very question that he has labored to refute, that original expected applications is an inferior originalism compared to the original meaning of hte words and concepts of the text itself.
 

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