an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Jack Balkin’s insightful and fair-minded response raises several interesting issues.
1. First, the "levels of generality" problem. The "original expected applications" originalists have a solution to this problem, in theory. They would say that a provision should be construed at the level of generality that was originally understood (or that the Framers intended, or whatever). So: can the Cruel and Unusual Punishment Clause be interpreted to forbid capital punishment? That would depend on whether the original understanding was that the Clause was to be interpreted dynamically; and if so, how dynamically. Specifically, was the original understanding that the Clause should be interpreted dynamically enough to permit "cruel and unusual" to be extended to cover capital punishment at some point in the future? (And I guess the further question, for this kind of originalist, would be whether we are now at that point.)
Of course, in practice, questions like these will almost never be honestly answerable. Even if they were answerable, the ultimate question, about being ruled by dead people, remains. But in principle, “original expected application” originalism tells us how to deal with the levels of generality problem.
But if you’re not an "original expected application" originalist, as Jack is not, then I think you’re stuck. You’re not going to look for the level of generality in the original understandings (if you did, you’d be an original expected application person); you’re going to get the appropriate level of generality from somewhere else. The somewhere else might be precedent, or it might be morality, or some combination of those two, or something else.
The language of the provision, and perhaps the historical materials, may place an outer bound on what values and principles you can attribute to the provision, although I’m not even sure about that: the idea that the Equal Protection Clause mandates "one person, one vote" became settled law pretty quickly in the face of overwhelming historical and textual material to the contrary. But in any event, the legal conclusion will be driven by something other than the original understandings, however defined.
2. For that reason, Jack is right on the money in his characterization of our disagreement. I do not agree with his position that common law development is a means of "implementing and applying constitutional values." "Implementing and applying" suggest that the big decisions were made by the people who adopted the constitutional provision in question, and that we, today, are just the servants, the implementers. I don’t think that’s an accurate, or attractive, account of American constitutional law.
I think constitutional law is better described as a process of resolving disputed issues using the tools of the common lawyer—precedent and past practice, which we use out of a sense of intellectual humility and also because of the importance of stability, coupled with essentially moral arguments of fairness and good policy. If we can get the Framers on our side, so much the better. But basically we are making the decisions, not implementing decisions made a century or more ago. (Jack asks why, on a common law account, we should pay any attention to the text, including what he calls the “hard wired” provisions. Those are very good questions; I’ve tried to answer them, at inordinate length, at 112 Yale L.J. 1717 (2003) (a draft of that article is here).
I should say in this connection that I totally agree with Jack about the importance of non-judicial constitutional lawmaking. But precedents are hugely important when, say, Congress and the President have a dispute over their respective prerogatives.
3. So far I haven’t said much about the specific concerns of liberals. Jack argues that his way of thinking about constitutional law provides resources that mine does not, particularly to groups that are trying to change the status quo. Again I think he is right, but for the reasons I’ve given, the resources are rhetorical. More to the point, though, small-c conservative rhetoric of the kind that progressives have been using in recent years is a pretty good weapon. That kind of conservative impulse runs deep in judges, and I think in citizens too.
Consider the constitutionality of affirmative action, for example. There is a very strong argument that the original understanding of the Fourteenth Amendment permitted affirmative action (and of course an extremely strong argument that nothing in the text of the Constitution or the original understandings forbids the federal government from engaging in affirmative action—or from discriminating against minorities). But outside the academy no one much seems to care about those originalist arguments. What does seem to persuade the Justice Kennedys and Justice O’Connors, along with innumerable business people and military officials whose political inclinations would otherwise make them opponents of affirmative action, is essentially a Burkean argument: that whatever the abstract objections to affirmative action, it has become a deeply rooted practice in American business, education, and government, and it works pretty well.
My hunch is that that is generally the more effective way for progressives to argue, when they can. If it is more effective sometimes to invoke the original understandings in some form (and sometimes, I’m sure, it will be more effective to do so), we should understand that we are making a rhetorical move. That’s not disreputable; it’s just not a legal argument.
4. Finally, a word on legitimacy. A few things in Jack’s account give me pause. First, I think legitimacy is a feature of an entire system, not just a constitution. In fact, things like the political culture of the governing class and the attitudes of one’s fellow citizens are almost certainly going to be more important, in determining the legitimacy of a system, than are formal constitutional principles, and probably more important than informal constitutional understandings, at least as long as those understandings fall within certain limits.
Second, I don’t think a common law or customary constitution poses any special problems of legitimacy. The problem of legitimacy doesn’t seem significantly different in Great Britain from what it is here.
Third, and related, Jack’s account of legitimacy seems to me a little too mystical. Jack’s point that the legitimacy of a system may depend on the future, not just the present—that’s a nice point. A system may be unacceptable now but still legitimate because of the prospect of change.
But I don’t think any of that has anything to do with faith, or that it “requires us to imagine the Constitution as . . . a joint project of many generations . . . that extends backward into the past and forward into the future.” The past might provide evidence of good or bad tendencies that will affect the legitimacy of the system; but I don’t see how that has anything to do with imagining the constitution as an intergenerational project. It is just a matter of collecting and weighing the evidence in order to figure out what the system is like today and will be in the future.
The same is true if the system is currently unacceptable, but you want to convince me that it is nonetheless legitimate because it will improve in the future. Suppose, for example, that there has been a military coup, and you are trying to persuade me to continue to support the government because, you say, the military will only stay long enough to clean up corruption and then will restore democratic civilian rule. If you want me to treat that government as legitimate, you are going to have to make a cold-blooded, rational argument about what will happen and when. I’m not going to be interested in conversations with ancestors or future people, and religious-sounding talk about faith and redemption will just make me suspicious.
I fear this is an inadequate treatment of the many interesting points Jack has made in his papers and in this and other blog posts; certainly there is much more to be discussed. Again let me thank him for this debate. Posted
by Guest Blogger [link]
You write: "I think constitutional law is better described as a process of resolving disputed issues using the tools of the common lawyer—precedent and past practice, which we use out of a sense of intellectual humility and also because of the importance of stability, coupled with essentially moral arguments of fairness and good policy. If we can get the Framers on our side, so much the better. But basically we are making the decisions, not implementing decisions made a century or more ago."
Why then are such decisions beyond revision by the political branches -- except through the very difficult process of revising the constitution which, on this approach, hasn't actually played much of a role in the decision-making? What is the basis for the extraordinary authority which courts claim when deciding questions of constitutional law?
"The 'original expected applications' originalists have a solution to this problem, in theory. They would say that a provision should be construed at the level of generality that was originally understood ... [C]an the Cruel and Unusual Punishment Clause be interpreted to forbid capital punishment? That would depend on whether the original understanding was that the Clause was to be interpreted dynamically; and if so, how dynamically..."
This seems to get the original-expectations view--that is, Raoul Berger's view--wrong, and thereby misconstrues what the rejection of original-expectations view requires. Berger thinks that constitutional interpretation is not dynamic. His argument against Brown does not allow for framer error about anything; he says (a) the framers thought that the 14A did the same thing as the CRA1866--and their view on that is binding on us--and (b) Wilson said that an earlier, broader version of the CRA1866 didn't desegregate schools--and his view on that is also binding on us. End of story. He doesn't look to see whether, for instance, Wilson's view of the tangible effect of the CRA1866 depends on facts about the world that might have changed, or about which Wilson might've been wrong.
"But if you’re not an 'original expected application' originalist, as Jack is not, then I think you’re stuck. You're not going to look for the level of generality in the original understandings (if you did, you’d be an original expected application person); you’re going to get the appropriate level of generality from somewhere else."
I think the misconstrual of how an original-expected-application theory approaches interpretive change affects the assessment of how someone who rejects that theory can deal with it.
A textualist semi-originalist like me responds to Berger by saying, not that we should look to how dynamic framers thought the 14A was, but by looking to how dynamic the text actually makes the 14A. The text expresses, in its historic context, a function from possible worlds to outcomes--that is, something that can produce different outcomes depending on which possible world we're in. Now, the framers had beliefs about which world we're in, and those beliefs aren't binding. They also had beliefs about which worlds we might be likely to be in--that is, beliefs which, if fully considered, would determine how dynamic the interpretation of the 14A would be. And those beliefs aren't binding on us either. The only thing that's binding is the textually-expressed function from possible worlds to outcomes.
So, in short, what matters is what sense competent users of the historically-situated terms that comprise the constitutional language would understand that language to express. That sense, when added the the actual state of the world, produces the referent and tangible outcome. Neither the framers' view of the reference-yielding facts, nor their view of likely future reference-yielding facts, is interpretively binding.
All of this has been fascinating, but I still don't understand what useful work any version of originalism does. On originalist grounds, were the following cases correctly decided and why, or why not? McCulloch v. Maryland; Hans v. Louisiana; Loving v. Virgina? If "originalism" can't answer these questions clearly, what does it do?
I suppose that depends on how you define "useful work". Originalism won't function as a means of rationalizing that the Constitution already means what you want it to mean, so that an amendment isn't necessary for your policy preferences to be 'constitutional'. And that's about the only "useful work" non-originalist approaches do. Actually figuring out what a clause of the Constitution means, instead of rationalizing that it means something you want, is pretty much always an example of originalism.
I define "useful work" as being helpful in deciding cases unclear enough to be worth litigating, and having some tendency to constrain judges from doing whatever they think makes sense. I don't think the various versions of originalism floating out there do that, and I picked three cases to illustrate. One is, on any version of originalism, undecidable. The next is, on any version of originalism with any teeth, clearly wrong yet generally endorsed by most self-styled originalists. The last is, on any non-Balkin-esque version of originalism, also dead wrong, but that's too embarassing for respectable originalists to admit. By the way, how come I have to sign up for a Google account every time I want to post a comment?
"Cases unclear enough to be worth litigating" are not an objectively defined class. They're a function not only of how unclear the Constitution actually is, but also of how productive litigators consider it to pursue frankly implausible claims in the courts.
Given what passes for "interpretation" today, a claim has to get damned implausible to not be worth pursuing, if it end it aims to achieve is one 5 Justices might approve of.