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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu 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 yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts What's A Theory of Constitutional Interpretation For, Anyway?
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Friday, May 09, 2008
What's A Theory of Constitutional Interpretation For, Anyway?
JB
I've argued that the major constraints on judicial practice in contested constitutional cases come not from specific theories of interpretation but from institutional features of the American constitutional and political system:
Comments:
As in horseshoes, close enough wins in constitutional interpretation from time to time (as in game to game in horseshoes). Seeking the holy grail of constitutional interpretation will be a continuing quest with a lot of tilting at windmills, mythical and otherwise, as new theories emerge and older theories reemerge. Let's say we find the holy grail of constitutional interpretation: then what? Will it be clear to and acceptable by all? Won't there always be someone out there who finds new, or discovers old, meaning that might tarnish that holy grail of constitutional interpretation? Or must that holy grail of constitutional interpretation be continually polished?
Thanks, Jack, for your thoughtful response to my question. You lay out an inspired vision, much of which I find compelling.
I can see the necessity for and benefits of providing a theory of constitutional interpretation as a resource for social movements and individuals, although the theory will have to be translated (or broken down) in to less esoteric terms than current discussions of "original meaning originalism." My main concern, however, was prompted by your nonchalant post ("yawn", you wrote) about McCain's speech on judges. Any theory of constitutional interpretation--any aspirational vision of the Constitution such as the one you set forth above--must have as a necessary part of it a core commitment on the part of judges (and everyone else) to not treat the Constitution as merely politics by another means. It is one thing to say that political visions make their way into the constitution ("partisan entrenchment"), but it is something else to treat a politicized judiciary as same old stuff. The former might be normal and necessary (and unavoidable), but the latter is not. You must keep apart the descriptive reality of "partisan entrenchment" from the presence of a politicized judiciary. They are not the same--the latter will shape (twist) the former in significant ways (pace as well as extent). Or to put my point differently, I don't think your positive constitutional vision (which has much to recommend it) can be achieved if we continue to appoint ideologues to the judiciary bent on injecting their political views into the law. Thanks, Brian
Sorry about the multiple postings of the same comment. They are not worth being stated more than once. I don't know why that happened, and, alas, I don't know how to delete them.
Brian
Sorry about the multiple postings of the same comment. They are not worth being stated more than once. I don't know why that happened, and, alas, I don't know how to delete them.
Brian # posted by Brian Tamanaha : 9:58 AM Go into "Post a Comment" and click on the trash can next to the post you want to delete.
Beautiful essay from Professor Balkin above....
On a related note. From his "Original Meaning and Constitutional Redemption" paper: "Constitutional interpretation is premised on faith in the constitutional project. This is a faith that the constitutional system as a whole is worthy of legitimacy and respect or will come to be so over time, even if important aspects of the document and its associated institutions are imperfect and unjust. Interpretive fidelity thus requires faith in the redeemability of the Constitution over time; hence my theory of interpretation is a theory of redemptive constitutionalism." Yes indeed.
The recent spate of commentary on constitutional theories of interpretation is staggering, as the debate continues with textualism, originalism, living constitutionalism and their old and new variations, and presidential candidates weigh in offering their views on judicial appointments. Are we getting closer to a state of constitutional nirvana? Can we expect to come to closure on a constitutional theory of interpretation that will be acceptable to We the People if not to constitutional scholars?
Prof. Tribe has apparently given up, at least for the time being, resolving what is the law with respect to the Constitution for purposes of his treatise. Perhaps he has come to the conclusion that there will always be controversy and dispute, what with our political system. Prof. Paul A. Freund in the Foreword to Thomas Reed Powell’s “Vagaries and Varieties in Constitutional Interpretation” (1955, Columbia Univ. Press) states that Powell “ … steadfastly forbore to compose a more systematic study; he was forever skeptical of generalizations and he had a low opinion of the merely expository – what he called deprecatingly recitativo.” This despite the fact that Powell “ … was an indefatigable and articulate critic of the Supreme Court over a professional span of fifty years. So long as the Court was prepared to challenge, he was ready to respond, and this he did in a current of essays numbering close to two hundred.” I try to follow the current commentary but the volume is overwhelming, especially when one constitutional scholar questions or challenges other scholars’ works followed by the latter’s responses, etc, thus challenging the reader to study even more commentary. With time limitations we all have, this may be like rooting for our favorite sports team. I’m with Jack and with Bruce Ackerman although Jack may disagree with Bruce in certain regards, perhaps prompting a response from Bruce, which may then pressure me to choose between them.
"Equal protection under the law" means the same as "separate, but equal." So said the jurists in Plessy. Frankly, it does not require a degree in hermeneutics, simply a nominalist understanding of how language functions. But if Kelo decides "public use" means government's use by private means and extortion, maybe the problem is not hermeneutics, but casuistry, and a court that has taken PostModernism's attacks on essentialism as valid? Sure, essentialism is a "straw man," but who on the court knows the meaning of fallacy? Especially when Tamanaha's encomium of Richard Rorty as "one of three greatest philosophers" leaves philosophers dumbfounded, as does Scalia?
Would William of Ockham's Theory of Terms and Theory of Propositions, i.e., Summa logicae, be beyond the grasp of your average jurist, attorney, but not your average person? Not if Richard Rorty is the standard!
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. 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Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |