Balkinization  

Tuesday, August 07, 2007

Stop Laughing, Start Talking

JB

Over at the Corner, Matthew Franck is amused:

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?

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-- including, among others Randy Barnett (who is libertarian, not progressive), Akhil Amar and myself. 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. We also disagree among ourselves about many different aspects of Constitutional law, including cases like Roe and Griswold and Lawrence. (For example, Akhil doesn't think Roe is correct, but he does believe that the Fourteenth Amendment might make some older abortion laws unconstitutional, including the original Texas law in Roe itself.)

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.

So here's what I propose: Go read my two articles here and here and then explain in detail what's wrong with my arguments. Let's start a conversation.

Comments:

But, if it's a debate about torture (see Jane Mayer thread and deleted comments below), then you are fine with wanting to "Stop Talking, Start Laughing" right?
 

Originalism does NOT commit the Intentional Fallacy?

And of all the hermeneutic theories one does NOT study in law school, of all the philosophy of language courses one does NOT study in law school, one wonders where Originalism come from?

Clearly, Originalism denies polysemy, which even Medieval scholars granted, it does not distinguish between denotation and connotation, appears essentialist rather than nominalistic, and is unclear whether is it literary, form, and redaction criticism. Perhaps divining original intent is the literal-historical devaju method with post-structural deconstructionism pre-social constructionism.

Actually, I think Justices use the Ad Hoc method introduced by Aristotle: Arrive at a decision, and they give reasons for it. Not very elegant perhaps, but after the recent decisions, reversing the use of race to remedy the Court's own use of racism in Plessy, it's either Ad Hoc or those black robes give them the impression that they are diviners of different occult spirits. Divining original intent would be quite a supernatural feat.
 

Charles, you really need to take your disagreements with other members of this blog up with them.
 

Obviously, that would be much easier if Marty didn't delete comments and/or responded to e-mail about this -- as I told you via e-mail, I've admired your commitment to freedom of speech at least, but that regardless I would do whatever I can do to help keep comments open -- if you ask me to not post here anymore, I would gladly comply.
 

Charles,

Although I don't want to put words into Professor Balkin's mouth, I believe he's suggesting that you engage in a private discussion (via email) with whoever it is you're debating. Introducing an argument on torture does nothing to further the comments/debate on topics such as Lederman's "When Does the Sun Set on Warrantless Surveillance?" post.
 

The problem is that originalism is both a constitutional theory and a political slogan. And many pundits, political hacks, and members of the general public know only the latter connotation, which tells a story of liberal academics, lawyers, and judges making up stuff that wasn't in the Constitution and creating rights out of whole cloth.

Add in a dash of the anti-intellectualism that is rampant in movement conservativism-- you'd be surprised how many conservatives believe that liberal scholarship is nothing more than a bunch of Ward Churchills indoctrinating their children and clothing their politics in a thin vaneer of scholarship. And what you get is people who have no idea that originalism can lead to liberal results, who have no idea that many conservative judges and scholars reject it, and who have no idea that it is applied so inconsistently even by those who purport to defend it.

The fundamental problem with arguing with folks with that mindset is that they really don't care whether you went back and looked at the original intention or understanding or meaning and found evidence supporting a particular result. They just want the cases to come out they way they want them to, and accusing liberals of insufficient fidelity to the framers' intent is a useful tool to push the law in their preferred direction.
 

I can appreciate that, Kevin, but what am I to do if Marty ignores e-mail as well? What I was trying to point out to Jack is the hypocrisy of his "Stop Laughing, Start Talking" post in general, and asking for his opinion about shutting down comments in other threads specifically. Marty, I've written off as hopeless.
 

I can appreciate that, Kevin, but what am I to do if Marty ignores e-mail as well?

Take a hint.
 

Because Dilan said everything I was thinking so eloquently, I don't have much to add.

I will this: @ "the gay species" . . . your comment (and in general all your posts) basically amounts to someone who has no idea what they're talking about name-dropping academic jargon in a barely coherent manner.

ALSO, NO ONE IS TALKING ABOUT ORIGINAL INTENT ANYMORE! That is old hat and no one in academia cares or even debates the point anymore. Perhaps more importantly for present purposes, no one posting on this thread cares.
 

Dilan wrote: "originalism is both a constitutional theory and a political slogan."

I disagree. It is a tool that can be used in interpreting the Constitution (or a law, I guess), but it is not a coherent theory of interpretation. It's certainly not used as such by originalists of various stripes in 14th Amendment cases.

It is much, much more often used as a slogan, designed to reach a certain policy result (tough on civil plaintiffs, tough on criminal defendants, as Rehnquist explained).

It will be terrific when Prof. Franck responds! The National Review is known for its careful, scholarly consideration of opposing views, and its unshakable commitment to intellectual honesty.
 

"There's no fakery here. No insincerity either."

Well, of course that's what you'd say. ;)

Seriously, I think the vast range of disagreement being exhibited here is evidence that you're not all really using the same interpretive approach; Common approaches to the same source material ought to converge, after all. And we're not seeing convergence.

I'll get around to reading those papers, but not tonight; The Eastern Michigan Fair has just opened 6 miles away, and I've got to take my lovely wife there.
 

Professor Balkin,

I think skeptics will be much more inclined to believe your sincerity if they know your views on the Second Amendment. At least, that's what convinced me when you came to speak at Professor Barnett's class this past Spring (which I was a member of).
 

matt,

Distinguish between originalism and (conservative) originalists. Yes, originalism has been applied inconsistently by many conservatives, who've pretty much monopolized the method up till now. All the more reason I'm glad to see liberals starting to adopt the method; I hope it'll keep the conservatives honest (and vice versa) in how they apply it.
 

I'll say this in Franck's defense: I've read the TNR article, and frankly it does look like the authors are purely interested in coopting conservative rhetoric to produce liberal results. I can see how someone reading that article would get a bad impression of Professor Balkin, though it's not his fault.
 

The Gay Species: I think Justices use the Ad Hoc method introduced by Aristotle: Arrive at a decision, and they give reasons for it.

Truly, I think this is a psychological reality and inevitability. But we can strive for more. And some of us do. I don't reckon Scalia or Thomas are "of us".

Have you looked at Professor Tamanaha's "Law as a Means to an End?" I think he pretty well nails the distinctions you're trying to make. And, not to put too fine a point on it, your complaints about the average DUI hack's lack of exposure to matters of hermeneutics certainly doesn't apply uniformly.

...Originalism denies polysemy...

Do you mean that with respect to Professor Balkin's work in context of Originalism?
 

Seriously, I think the vast range of disagreement being exhibited here is evidence that you're not all really using the same interpretive approach;

Where did Professor Balkin claim to be using the same interpretive approach? I thought his claim was more along the lines that the progressive legal scholars who have not allowed conservatives to have the only say over what is the original meaning of the Constitution actually have a better interpretive approach than those so-called originalists.
 

Common approaches to the same source material ought to converge, after all. And we're not seeing convergence.

I wish this were true. Try asking various theologians to interpret the same clause of the Bible and see what you get.
 

@ Mark Field: Somewhere in Austin, TX, Sandy Levinson is smiling at your comment re: the Bible.
 

Robert, do you teach?
 

Calvin TerBeek: Robert, do you teach?

Uh, kindof a non-sequitur. I sure wouldn't deign to teach anyone here 'cause I know when I'm outgunned. I try to give as good as I get, 'though. Why do you ask? I used to teach personal development seminars with a linguistics spin, and I've done some University extension courses for UCSB, web management and the like.
 

"Try asking various theologians to interpret the same clause of the Bible and see what you get."

Yes, but that's because theologians aren't approaching the Bible as originalists. They can't; Because the Bible can't be amended, non-originalist interpretation is the only way it has of adapting to changing circumstances.

It's precisely because the Constitution can be amended that originalism is a feasible approach over time: You can resolve failures of the text to work in changed circumstances by changing the text, instead of using a warped interpretation to arrive at a 'meaning' that derives more from what you need than from the text itself.
 

just wondering. like your comments ususally. i saw that you made an admirable attempt to save the TGS's comment. I probably went to hard on him/her. I have a suspicion, unwarranted or not, that its comments like that are the cause of Prof Lederman's campaign. Anyhow, i tried to send you all this an email from your page but it got bounced back to me. what is your email?
 

@Calvin TerBeek, beau ( a t ) oblios-cap ( d o t ) com

Be thrilled to hear from you. :)

I think my and Arne's incessant riding of the vandals is more what Prof. Lederman set his sights on. Well, that and the vandalism itself, of course. I'm doing my best on that score.

I've visited TSG's blog; it's worth the clicks, imo.

Peace.
 

Yes, but that's because theologians aren't approaching the Bible as originalists.

This is just wrong. Protestants, especially, are textualists, with meaning fixed as of the date of writing. In those cases where text is in dispute or ambiguous, those we call Fundamentalists use evidence from that era to support their interpretations. You can argue about Catholics, but I am sure they'd insist that they're good originalists too (though they allow for construction).

It's precisely because the Constitution can be amended that originalism is a feasible approach over time: You can resolve failures of the text to work in changed circumstances by changing the text

You have it exactly backwards: it's precisely because the Biblical text is considered divinely inspired and invariant that originalism makes some sense in exegesis. It makes no sense at all with a Constitution adopted by a fallible and very unrepresentative group of voters, who then tried to freeze their anti-democratic views into place via a counter-majoritarian amendment process.
 

@Mark Field,

From experience I have my doubts as to the potential efficacy of engaging certain interlocutors, but since you have so engaged perhaps you will let me piggy-back on your statement.

Originalism, with either Bible interpretation or Constitutional interpretation, is most often a sham, nothing more than a rhetorical ploy to shut down logical thought and discourse. The Christian bible is chock full of contradictions, some profound, some not. The differences between the two versions of "The Lord's Prayer" puts the lie to any claim of "strict, literal, 'originalist' interpretation" of that Scripture; strict bi-valent logic requires that one of those versions is "divinely inspired" falsehood. So too for the two versions of Genesis. Worse still, your interlocutor's statements show a childishly naive failure to appreciate the history of the development of the specific collection of texts known as "The Bible". Add the displayed ignorance to the logical failures and the clear conclusion is that this particular conversationalist probably isn't going to give you the best ROI.

I don't think it's an accident, however, that Originalism in the political sphere seems to have taken its deepest roots in the party snuggled most comfortably in bed with local religious extremists. The lie of literalism, i.e. "originalism", in Constitutional interpretation would sell very well with a certain group of voters as they are already well practiced at the denial and repressions required to support such a reading of their Scripture. These very much seem to be the voters a Scalia or a Thomas are pandering to when they disingenuously mouth terms like "Originalism".

Time and again it seems to me the greatest challenge liberals/progressives face in dealing with right-wing rhetoric is getting over the bad habit of taking it at face value. Most of the time these arguments are either a) disingenuous, a means to an end, as with Scalia and Thomas, or b) born of ignorance, parroted by the true believers courted by the group in a). In particular, we tend to fail to take into account the basically anti-intellectual nature of our opponents, best exemplified locally with one commentator who boasts of being a black-and-white thinker. There's a comfort to such a simple view, despite the hobbling effects of such childish simplicity. Once someone has so elevated this basically anti-intellectual presumption of bifurcation there is little point of discourse save in terms crafted to suit their adopted perceptual filters: You, with a devotion to truth and reality even where it doesn't fit convenient (lazy?) bifurcation, are right; they, with a childish reliance on simple black-and-whites are wrong, for a sound argument is not made up of true conclusions alone, but rather true conclusions arrived at by valid inference from true premises. So long as the black-and-whiters insist on bifurcating Pantone(tm) reality their arguments can never be sound.
 

In those cases where text is in dispute or ambiguous, those we call Fundamentalists use evidence from that era to support their interpretations.

Not really. Christian Fundamentalists tend to use evidence and argument original to the last 10% of the Christian era, even while they make ahistorical claims to be representing more than 2000 years of Christian tradition by insisting on doctrines like premillenialism.
 

"NO ONE IS TALKING ABOUT ORIGINAL INTENT ANYMORE!"

That stopped when Gov. Bush became President Bush. The political side of the original intent debates was always about conservatives trying to limit the power wielded by Democrats.

When they gained control of the White House and Congress, the organs pushing original intent into the political debate disappeared.

Witness the silence from the principal proponents of original intent on what used to be important issues to conservatives, like executive privilege and the use of military power. When their "side" gained power, all conversation on the topic ceased.
 

That's nonsense.

As Balkin and many others have noted, the original intent form of originalism began to fall from grace more than 15 years before George W. Bush moved into the White House. It may continue to have a living dead existence among the political chatterers, but it has long been out of favor among legal scholars.
 

From experience I have my doubts as to the potential efficacy of engaging certain interlocutors

While I disagree regularly (not always) with Brett, I think he's a serious, legitimate poster who will engage in dialogue and admit it if he makes a mistake.

The Christian bible is chock full of contradictions, some profound, some not. The differences between the two versions of "The Lord's Prayer" puts the lie to any claim of "strict, literal, 'originalist' interpretation" of that Scripture; strict bi-valent logic requires that one of those versions is "divinely inspired" falsehood.

I certainly agree that the Bible is self-contradictory. I'm merely pointing out what Christian exegesists believe they're doing.

I don't think it's an accident, however, that Originalism in the political sphere seems to have taken its deepest roots in the party snuggled most comfortably in bed with local religious extremists. The lie of literalism, i.e. "originalism", in Constitutional interpretation would sell very well with a certain group of voters

Agreed. I think there's a natural affinity in the attitude towards texts which leads to this association. The difference, as I pointed out above, is that one text was (in the minds of believers) divinely inspired, while the other was not. That, it seems to me, should affect the way one approaches the text, but apparently it doesn't.

Christian Fundamentalists tend to use evidence and argument original to the last 10% of the Christian era, even while they make ahistorical claims to be representing more than 2000 years of Christian tradition by insisting on doctrines like premillenialism.

Fair enough. It's an originalist approach in the sense that it defines a particular era and reasons from that both forward and backward.
 

Brett, you seem to be saying that originalism should be the preferred approach to Constitutional interpretation because the Constitution can be amended in cases where the language of the document does not permit ready application to a case at hand. Is that a correct characterization of your position?
 

Mark Field: ...I think [Brett]'s a serious, legitimate poster...

I will plead faulty memory so as to take your commendation. It is certainly to everyone's benefit to have different perspectives.

Brett, I hope you will accept my apology for being unduly dismissive, and hope in time to earn your esteem as you have won Mark's.

Mark Field: The difference, as I pointed out above, is that one text was (in the minds of believers) divinely inspired...

I think it fair to sort the faithful into two main camps, the studied, educated faithful, and the less so; the shepherds and the sheep, if you will. I think your comment applies with great force to the sheep, much less so to the shepherd. I might add here that I am ordained, my mother assistant pastor of the church of my youth, and my cynicism on such matters arguably born of experience. Originalism (i.e. purported literal texualism) preached by shepherd to sheep is often a means of delivering peace of mind to the flock, and as such need not be disingenuous; faith is inherently irrational (but, please, note, there's nothing inherently pejorative about the irrational.) When originalism is preached in the political sphere this issue of shepherd v sheep comes again into play. A Scalia is not a sheep, and I think it unwise and unrealistic to credit one such as him with the slack one might cut for one of the flock. When a political hack lifts the specious reasoning from one sphere and applies it to another, as much to carry his "base" as to legitimately dispute opponents, that's a very different matter than when one of the flock rests his arguments on his Scripture. This also raises the observation that where liberals/progressives tend to try to convince their interlocutors, conservatives are typically trying to sway, or hold, voters. Makes a world of difference, because even where a liberal "wins" against a right winger, forcing them to admit color in what they had tried to frame as black-or-white the right-winger wins the only battle they care about: the confirm the world view of their faithful, by way of the self-sealing prophecy that either the right will win by virtue of being correct to bifurcate or will be subjected to anti-bifurcative "tricks" of their devilish opponents. Either way, the anti-intellectualism is sustained in the eyes of the folks who count to the right wing.

"God Said It, I Believe It, That Settles It," is not sound argumentation, but it's tremendously effective rhetoric for a certain class of "thinker." Using the same form of sophistry with folks already comfortable with this kind of reasoning will only make it that much easier to "convince" them---and to prejudice those same people against any efforts to create legitimate discourse. "The Constitution Says It, I Told You That's What It Says, That Settles It," is what Originalism means in the hands of the right wing.

This is not as well structured as I would wish. There's a lot of ground being covered. But I think TGS was on a worthwhile branch of inquiry, that there are relevant issues here, but it's a big, big can o' worms.

Peace.
 

There is an interesting difference between those preaching "God Said It, I Believe It, That Settles It" and those preaching "The Constitution Says It, I Told You That's What It Says, That Settles It."

Many of the "God Said It, I Believe It, That Settles It" clergy who are seeking to protect their orthodoxy and tradition take a strident public position against the rational and historical examination of their original texts. They are publicly opposed to Higher Criticism and the like. A received cultural understanding dominates over the history, facts, and original meaning of the texts.

On the other hand, many of the "The Constitution Says It, I Told You That's What It Says, That Settles It" demagogues, who are also seeking to protect their orthodoxy and tradition, publicly promote their position as being a rational and historical examination of their original texts. At least in theory, the methods of conservative constitutional originalists are open to textual analysis and criticism that are very similar to those that are rejected by religious conservatives as deplorable liberal theology.
 

Mark: At least in theory, the methods of conservative constitutional originalists are open to textual analysis and criticism that are very similar to those that are rejected by religious conservatives as deplorable liberal theology.

My point being that any such theory is given lie by the generally anti-intellectual tenor of folks denying the legitimacy of the kinds of interpretive methods invoked by TGS way up thread. Conservative originalists are indeed wide open to any argument or scrutiny, excepting of course for analysis by methods already prejudged as illegitimate on a guilt-by-association basis precisely because of the need to avoid such types of investigation in the theological realm. Or so goes one plausible line or reasoning in my head. Ultimately it's appeal to meta-authority mediated by appeal to authority, with God and the Constitution as the meta-authorities, the clergy and the bench as the authorities, and no real incentive to dig any deeper. But considering most folks don't know empiricism from imperialism, much less how to tell a truly empirical fact from an appeal to authority flatly asserting but absent steps to reproduce allegedly empirical observations, well, seems to me it's an uphill battle at best.

Peace.
 

Perhaps it is a smaller and more surmountable hill in the academy than in the popular political realm. At least among scholars, anti-intellectual rhetoric is supposed to be less well received.

Best of luck on your climb, Professor Balkin.
 

This comment has been removed by the author.
 

I think Balkin clearly is right on this. I watched a video, available online, of Franck speaking to Robbie George's James Madison program at Princeton, Oct. 3, 2006.

http://web.princeton.edu/sites/jmadison/calendar/videos.html

Franck argued that when the Supreme Court is activist, it violates the Constitution. And towards the end said something along the lines of the Supreme Court violates the Constitution all the time every term, but he couldn't think of the last time Congress violated the Constitution.

Franck, like Scalia, believes in "democratic theory" where questions about the public good should be decided by "the people." Thus, Franck like Scalia wants the people to be able to determine whether post-New Deal big federal programs are acceptable.

The problem is the original expected application of the Commerce Clause's text and the limited enumeration of Congress' power would have the Framers believing much of what the Congress does under its post-New Deal understanding of constitutional powers to be unconstitutional.

So that everything Congress does when it builds upon post-New Deal Federal programs -- and it does so practically every day it's in session -- violates the Constitution according to the original expectated application of the Constitution's text.

If originalism can vet what Congress does on a daily basis using its post-New Deal understanding of congressional power, as Franck apparently thinks it can, then originalism can surely vet the right to abortion and sodomy as well.
 

Brett,

I think the mistake you make is thinking that constitutional disagreement must be interpretive. But it isn't always (or even usually). If you and I disagree about whether affirmative action is consistent with equal protection, we aren't disagreeing about the meaning of words, but about the justifications for affirmative action.
 

Sorry about the delay in responding, my wife insists that I should have something she calls a "life". LOL!

Don't sweat it, Robert, I'm firmly of the opinion that a free society requires people to have thick skins, and mine is like rhino hide. :)

Eugene, not quite: The availability of an amendment process is what makes application of originalism feasible: If the Constitution's text were fixed for all time, we would indeed be forced to employ methods of 'interpretation' which could find a meaning which varied with circumstance. However, since the text, and thus the actual meaning, of the Constitution, is subject to formal amendment, we can adjust the actual meaning to fit changed circumstances, and are thus free to use an interpretive technique which is true to that fixed, (So long as the text isn't changed.) meaning.

What makes originalism prefered is that it IS a form of "interpretation". Allow me to explain:

You could create, I suppose, a digital filter such that a Bangles CD played through it would sound like Ravel's Bolero. Would this make Ravel's Bolero an "interpretation" of the Bangles? Nope: We'd all recognize that the filter was just substituting what we were hearing for the actual CD's contents.

Similarly, you can employ a technique of 'interpretation' which takes a Constitution written over 200 years ago, and finds a meaning in it which, strangely enough, varies according to need. But the truth is, you're not "interpreting" if you do that, you're "substituting".

So my position is that you're only really "interpreting" to the extent that you're employing an originalist approach. Making it not the "prefered" form of interpretation, but instead the only form.
 

The availability of an amendment process is what makes application of originalism feasible: If the Constitution's text were fixed for all time, we would indeed be forced to employ methods of 'interpretation' which could find a meaning which varied with circumstance.

Since the most egregious provision of the (current) Constitution is indeed "fixed for all time" (Art. V: "Provided, that ... no state, without its consent, shall be deprived of its equal suffrage in the Senate."), I assume you'd have no problem "interpreting" this out of existence.

That's leaving aside the problems with the amendment process I noted above.

Similarly, you can employ a technique of 'interpretation' which takes a Constitution written over 200 years ago, and finds a meaning in it which, strangely enough, varies according to need. But the truth is, you're not "interpreting" if you do that, you're "substituting".

That assumes a fixed meaning to begin with, i.e., a standard against which anyone's understanding of the text can be measured objectively. There is no such standard.

That's putting aside the fact that reasonable people might, you know, actually just disagree about meaning.
 

Mark, why would you have to 'interpret' that clause out of existence? Two clear routes exist to abolishing it via Article V:

1. Secure the agreement of the relevant states to abolishing that guarantee. Not likely, I'll agree, without some major compensation, but not theoretically impossible; State legislatures did, after all, amend the Constitution to deprive themselves of the power to appoint those Senators.

2. Abolish the Senate altogether, or reduce it to ceremonial status. A guarantee of equal representation doesn't count for much when the body in question no longer exists. And, given representation on the same basis as the House, it loses it's last reason for being a distinct body.

See how simple these problems are, when you're not looking for an excuse to circumvent Article V?
 

Secure the agreement of the relevant states to abolishing that guarantee. Not likely, I'll agree, without some major compensation, but not theoretically impossible

I find this condition precedent illusory. But even if it happened, Art. V would still require a 3/4 vote among the states. Hardly a democratic process, and not one other states would likely accept if they themselves wanted to preserve their own representation in the Senate. Even if we somehow persuaded one state to give up its representation (say, merge WV back into VA), other states might very well refuse to agree for fear of the precedent it would set.

Abolish the Senate altogether, or reduce it to ceremonial status.

I don't believe the language of the clause, fairly read, would permit abolishing it altogether. Reducing its powers would be possible, but hardly likely given the 3/4 requirement.

I frankly don't see that implausible hypotheticals add much support to an interpretive method which maintains such an undemocratic process. And I can't, for the life of me, see how such a method can be justified as "democratic".
 

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