Is an inclusive constitutional democracy possible?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Olatunde Johnson

Congratulations to Balkinization on its 20th Anniversary.   I have always found the blog an especially valuable resource for debates about constitutional methodology.  The blog’s domain extends beyond theory and interpretation, of course.  And so I am curious to see how the blog evolves over the next twenty years.

 Given threats to democracy, increased political violence, fervent and polarized social movements, and a Supreme Court willing to overturn settled precedent, I am drawn to conversations about the ideal role of constitutionalism in American society.  Some commentators offer strong arguments against constitutionalism as a mode of governance, and make entreaties to progressives, at least, to focus less on expanding the constitution and instead on diminishing the power of the Supreme Court, and furthering a democratic politics of inclusion. 

These arguments have resonance to me.  When the Balkinization blog was born in 2003, I was a civil rights litigator.   A blog about constitutional law theory was interesting but far afield from our racial justice work which primarily involved the implementation of statutory and administrative law.   Our federal constitutional law work (at least in our civil cases) was often defensive.   Asserting Congress’s power under Section 5 of the 14th Amendment to enact statutory disparate impact standards.   Preserving an educational institution’s ability to consider race and ethnicity as factors in admissions or to promote integration against a “colorblind” view of the 14th Amendment.

A few years later when I entered academia, I was often surprised by the amount of public law focus on constitutional methodology and the Supreme Court’s constitutional law decisions. Often, it seemed to me, this emphasis came at the expense of exploring the work of Congress, state legislatures, administrative agencies, or even state, trial, and appellate courts.  Given my concern about equality and discrimination, it seemed that the federal constitution was where hope perished, offering a sadder, more limited range of tools than those used by real-life lawyers and advocates.

Original Expected Applications Redux

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Lawrence Solum

Jack Balkin is famous for highlighting the difference between “original public meaning” and “original expected applications.”  This conceptual distinction first came to the attention of the legal academy via “The Meaning of Original Meaning,” a 1998 article by Mark Greenberg and Harry Litman.  As Balkin wrote in 2007, “originalist practices of argument tend to conflate original meaning and original expected applications.” (Jack M. Balkin, “Original Meaning and Constitutional Redemption.”) 

The nature of the distinction between “original expected applications” on the one hand, and “original public meaning,” on the other, requires unpacking.  The word “meaning” is notoriously ambiguous, but in the phrase “original public meaning,” the relevant sense of the word “meaning” is best captured by the idea of “communicative content.”  And “content” refers to the concepts and propositions that are conveyed (communicated by) the constitutional text to its intended audience.  Another way of putting this uses the distinction between “sense” and “reference” made famous by Gottlob Frege.  The original public meaning of the constitutional text is its original sense. 

Communicative content is conceptually distinct from expected applications.  The communicative content of a text is what determines its applications.  “Expected applications” are beliefs (expectations) about what applications the communicative content of a text will produced.  “Original expected applications” are application beliefs that are formed at the time a constitutional text is framed and ratified.

Will “Liberal Constitutionalism” Survive the Joint Attacks from “Illiberal” and “Democratic” Constitutionalism?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Sandy Levinson

            I have been teaching courses on American constitutional law for almost 50 years.  During most of those years, it was a given first that the United States was an exemplar of “liberal constitutionalism” and that, perhaps more importantly, “liberal constitutionalism” was the only valid form of constitutionalism.  What did “liberal constitutionalism” entail.  Roughly speaking, it is a notion that a constitution, along with setting out the basic structures of the polity, at the same time establishes limits on what the polity can do.  These are commonly viewed as “rights,” and a major purpose of a constitution is thought to be the safeguarding of rights against what is often, especially in the United States, termed the “tyranny of the majority.”  One way of safeguarding minorities against such tyranny is to make it hard for popular majorities in fact to legislate.  Thus we have notions of both separation of powers and checks and balances to set up a variety of veto-gates to serve this purpose.  After all, for any legislation to pass, it must not only procure sufficient support in two quite different legislative branches, but gain as well presidential signature.  To be sure, Congress can overrule a presidential veto, but, over our entire history, presidents have been successful in sustaining their vetoes roughly 95% of the time.  Moreover, the very threat of a veto turns the legislature into a de-facto tricameral institution insofar as the House and the Senate alone cannot in fact work its will save in extraordinary situations.  But even if a bill does become a law, all of us are increasingly well aware that that is not the last step.  The federal judiciary, with the Supreme Court at its head, feels altogether free to exercise its own veto, based, of course, on often controversial readings of what limits are established by the Constitution itself.  

            I have for many years been critical of what I’ve called “our undemocratic Constitution,,” but there is no doubt that the Constitution was constructed by Framers extremely dubious about the capacity of “we the People” to engage in actual rule and, as importantly, was supported by most Americans who were taught from an early age to venerate the Constitution and view it as a basically sacrosanct scripture that defined what it meant to be American.  And, as suggested, even critics of one or another part of the Constitution—the electoral college, say—did not extend that criticism to the idea of “liberal constitutionalism” itself and to suggest to new countries writing their own constitutions after World War II that the United States Constitution represented the basic template of “constitutionalism” in general.

Enumerated Powers and Race

Andrew Coan

(coauthored with David S. Schwartz)

Until the mid-twentieth century, the doctrine of limited, enumerated powers—or “enumerationism”—exerted its greatest influence on the regulation of race relations. Before the Civil War, a broad constitutional consensus held that the maintenance of slavery was a question for the states that fell outside the enumerated powers of Congress.  Indeed, many scholars now believe that the maintenance of slavery was the driving force behind the theory of enumerationism. Notwithstanding the effort to nationalize the rights of African Americans through the Reconstruction Amendments, the Supreme Court and Congress quickly fled the arena, yielding control of race relations to the states. This was manifested most clearly in legislative and judicial toleration of Jim Crow laws and the Supreme Court’s refusal to permit Congress to enact general equality legislation during Reconstruction. 

Enumerationism can therefore claim a longstanding historical pedigree for federal disempowerment over race relations through the 1940s. But this fact hardly recommends itself as the basis for a binding historical settlement in enumerationism’s favor.  To the contrary, it supplies a precedent for the rejection of enumerationist historical practice in the realm of constitutional construction. Significantly, the Supreme Court’s eventual rejection of the enumerationist understanding of race relations was only partially based on the Reconstruction Amendments. The landmark Civil Rights Act of 1964, which arguably did more to further racial equality than the Equal Protection Clause, was enacted under the Commerce Clause of the original 1787 Constitution.  

This reinterpretation of the Commerce Clause is crucial to the constitutional construction of enumerationism in two ways. First, it demonstrates how the Commerce Clause has come to function as a de facto General Welfare Clause. Second, it supplies a powerful precedent for the proposition that settled historical practices under the Constitution are not permanently fixed but can be unsettled and resettled.  It is difficult to accept the “civil rights settlement” of the mid-twentieth century as a valid and authoritative historical practice for purposes of constitutional construction while rejecting as historically insufficient the even more longstanding New Deal settlement, including broad federal regulatory power over virtually every sphere of social and economic life.

For a fuller discussion, see our new draft article “The Original Meaning of Enumerated Powers.”

The Debt Limit and the Limits of Obstructionism

David Super

     The Biden Administration did an impressive job of drawing media attention last week to the country’s formally reaching the statutory debt limit.  This milestone has been reached without incident numerous times in the past.  Neither the Administration nor anybody else serious suggested that this time would be any different, but they sold the symbolism better than any of their predecessors. 

     This performance leaves me cautiously optimistic that the Administration will finesse the overall debt limit debate effectively over the next year, leaving the economy, democratic governance, and the government’s functionality largely untouched.  The debt limit is fundamentally a challenge of political framing rather than substantive lawmaking, making a clear-eyed approach to the politics decisive.  Contrary to some commentary, congressional procedure will pose little obstacle to resolution of this problem.

     The debt limit was enacted long ago, when the congressional budgeting process was far less sophisticated.  It sought to limit the Executive Branch’s routine evasion of Congress’s constitutional power of the purse.  The debt limit is best understood as being in pare materia with the Anti-Deficiency Act and other pre-modern laws seeking to renew congressional control over federal spending. 

     Important financial legislation routinely requires updating.  This is true of securities and banking regulation, this is true of the Internal Revenue Code, and this is true of congressional budget procedures.  Too many arbitrary lines must be drawn, too many assumptions must be made that future transactions will be like historical ones, and so on.  Those with contrary interests will reliably find new ways to structure transactions to evade, or gain beneficial treatment under, any fixed set of rules. 

     Modern congressional budget procedures – the system of laws beginning with the Congressional Budget and Impoundment Control Act of 1974 – have undergone frequent updating.  Partisan divisions have left significant holes – notably the accessibility of reconciliation procedures to pass budget-busting legislation – but their definitions are generally up-to-date and they largely foreclose simplistic evasions of their core rules.

     As Congress’s success in reclaimed effective control of fiscal affairs long ago rendered the debt ceiling unnecessary, Congress has paid little attention to updating its definitions and other structural provisions.  As a result, the Administration has numerous means available to continue to operate the government while literally complying with the debt limit legislation.  One well-known set of devices, the so-called “extraordinary measures”, have become entirely ordinary and are routinely applied by Treasury officials of both parties.  Many others wait in the wings, from premium bonds to platinum coins.  All are gimmicks, but then so is the debt limit itself at this point.    

     An ethical case can be made for refusing to engage in subterfuge to prevent legislation from achieving its intended purpose even if one personally rejects that purpose.  But almost nobody argues that the debt limit’s purpose is to provoke a default on the federal government’s debt.  That means the only debate is over how to avoid a default, with neither side obligated to accept the other side’s policy program as a means of avoiding a result that neither side is willing to publicly embrace. 

     The simplest approach would be for President Biden to declare that the debt limit is unconstitutional, violating Section 4 of the Fourteenth Amendment:  “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”  He could also construe the specific commands of legislation appropriating funds, and the Impoundment Control Act, as superseding the debt limit, construing the debt limit to forbid only borrowing to pay for expenses not authorized by Congress.  That would render the debt limit a mere implementing statute for the Constitution’s Appropriations Clause, but then again so is much of the Anti-Deficiency Act.  Or President Biden could combine these two approaches, narrowly reading the debt limit in deference to the canon that calls for avoiding constitutionally problematic interpretations. 

     President Biden would be foolish to make substantive concessions to raise the debt limit.  House Republicans panicked President Obama into doing so, and the result was sequestration that hobbled numerous government functions – for which Democrats were largely blamed.  And the extortionate demands just kept on coming until President Obama finally called the Republicans’ bluff, as he could have done years earlier.  President Biden watched those machinations at close range and surely does not want to follow that path again, particularly with Rep. Gaetz declaring that he only cooperates when he cannot think of any more concessions to demand. 

     On the other hand, much of the public would condemn the President if he unilaterally disarmed the debt limit without making a concerted effort to get House Republicans to do their part to avoid a default.  Accordingly, Administration officials likely will try to use their ability to bypass or disregard the debt limit as leverage in discussions with House Republicans rather than jumping immediately to implement those measures. 

     In the end, pressure from business leaders is likely to drive one of two scenarios.  One possibility is that they will publicly demand that President Biden defang the debt limit himself, providing the necessary political cover.  A variant on this is that they press Senate Republicans to pass a clean debt limit bill – which would have to be bipartisan – to isolate the House Republicans and allow President Biden to frame his action as a response to the irresponsibility of the House. 

     The other possibility is that business groups press a handful of House Republicans – such as Members from New York and New Jersey clearly dependent on businesspeople rather than culture warriors for support – to back a discharge petition for a clean debt limit increase.  This procedure would be fairly straightforward and would not depend on the extremists that Speaker McCarthy installed on key committees to win his gavel. 

     Someone, either a brave Republican or a low-profile Democrat, would file a clean debt limit bill and then would separately file a House resolution to bring the bill to the floor on a rule requiring a simple up-or-down vote.  Filing a discharge petition on the bill would allow the House Rules Committee to bring it to the floor under a rule allowing it to be amended with a Christmas tree of extremist demands.  Filing a discharge petition on the proposed rule, however, would ensure that it and the underlying clean debt limit bill could pass the House with solid Democratic support plus five Republicans. 

     In theory, the Senate should be even a greater hurdle, with the fifty remaining Democrats having to pick up ten additional votes rather than the five needed in the House.  And unlike 2021, Senate Democrats cannot pass debt limit legislation on reconciliation – requiring only fifty-one votes – because that would require the House first to agree to a budget resolution authorizing reconciliation. 

     In practice, Senate campaigns are sufficiently expensive that few senators want to risk being cut off by big business.  Business leaders’ 2021 threats to Senate Republicans over debt limit obstructionism have ensured that a critical mass will fall into line once the House is dealt with.  Senate Republican leaders have clearly signaled that they will not join their House colleagues’ brinksmanship. 

     One might imagine that, once business-oriented House Republicans signal Speaker McCarthy privately that they are ready to sign a discharge petition, the Speaker would try to salvage some face-saving deal with the Administration.  Extremists’ current leverage in the House, however, might well prevent him from doing so.  That failure could weaken both him and the extremists even further:  once the first piece of legislation moves via a discharge petition, that route will look more and more attractive for subsequent bills, including continuing appropriations to avert a partial government shutdown on October 1.

     More broadly, the extreme MAGA Members dominating the House Republican Caucus are making very much the same mistake that some progressives do:  assuming that the decisive factor limiting progress on their agenda is the timidity of more establishment members of their own party.  In fact, key parts of their own electoral coalition do not support their aggressive approach.  When their predecessors went maximalist with government shutdowns, they repeatedly took the great majority of the public blame and weakened themselves going forward.  These Members’ unwillingness to learn from past battles will benefit the Democrats unless President Biden, too, fails to heed the lessons of history. 

     @DavidASuper1

The Constitutional Theory of the Working Constitution

Mark Graber

For the Balkinization 20th Anniversary Symposium 

How constitutions work and can be made to work better is the fundamental question of constitutional theory.  Façade constitutions exist.  Witness China and the former Soviet Union.  Nevertheless, most constitutional reformers are interested in securing results.   The Federalist framers wanted to strengthen the national government. The persons responsible for the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution of the United States hoped to destroy slavery, the slave power, and the slave system.  Proponents of congressional Reconstruction did not simply want parchment barriers that would be ignored in the former slave states or words on paper that would give domestic and foreign audiences the impression that the United States was committed to destroying slavery, the slave power, and the slave system. 

Words matter, but as efforts to achieve particular results, not merely as conveyers of linguistic meaning.  A constitution that declares, “the federal government has no power to interfere with slavery in any state” is unlikely to be as effective an instrument for abolishing human bondage as a constitution that declares, “Neither slavery nor involuntary servitude shall exist.”  Nevertheless, what matters for constitutionalism are the mechanisms for implementing these sentiments and how these mechanisms work. A constitutional ban on slavery constitutionally implemented in large part by officials from former slave states in a regime committed to federalism works differently than a constitutional ban on slavery constitutionally implemented by a Congress controlled by antislavery advocates and abolitionists. 

The meaning of constitutional words is inextricably linked to the constitutional mechanisms for implementation.  Larry Kramer and other popular constitutionalists remind us that words designed to be implemented by courts are far more likely to have legal meanings than words designed to be implemented by a dominant political party or virtuous elites in the elected branches of national government.  What people think they are accomplishing when they ratify a constitutional provision protecting free speech depends in part on whether they think judges, legislators, or juries will be responsible for determining the scope of that right.  Constitutional originalism investigates what framers are doing when they add language to the Constitution and is only incidentally concerned with possible public meanings of that language at the time of ratification.

Constitutions work when the people are able and willing to operate constitutional institutions in ways that achieve constitutional ends.  Stephen Elkins has long pointed out that functioning constitutional regimes consist of a set of values and ends, institutions designed to achieve those values and ends, and a people who share those ends and can operate the institutions in ways that achieve those ends.  Regimes become dysfunction when severe disharmonies exist between constitutional ideals/values, constitutional institutions, and the constitutional people.  The constitutional problem is almost always not that the constitution is being misinterpreted, but that constitutional institutions are no longer securing constitutional purposes, or that the constitutional people either no longer share those constitutional purposes or cannot operate constitutional institutions in ways that achieve constitutional purposes.

Consider the different perspectives an advocate of abortion rights might take on the contemporary politics of reproductive choice in the United States. The problem might lie with constitutional values.  The Constitution of the United States, properly interpreted, might not protect abortion rights or constitutional protections for abortion rights might be sufficiently unclear that persons in good faith might believe that states are constitutionally empowered to protect unborn life at the expense of the pregnant woman’s choice.  The Constitution of the United States, properly interpreted, might protect abortion rights, but dysfunctional constitutional institutions are presently empowering unsympathetic constitutional authorities in the courts and in many states who are committed to banning abortion.  The Constitution of the United States, properly interpreted, might protect abortion rights, but the constitutional people are failing the Constitution either because the number of people committed to protecting abortion rights in the United States is too few to enable constitutional institutions to protect abortion rights or the people who favor abortion rights are incapable of operating constitutional institutions in ways that protect abortion rights.

The following paragraphs offer a vocabulary for thinking about how constitutions work and do not work.  As numerous posts in this 20th anniversary celebration indicate, a vocabulary exists for constitutional interpretation.  My forthcoming volumes on the post-Civil War Amendments attempt to provide a language for thinking about how constitutions work. Feedback both on the vocabulary and the substance is very welcomed.

Constitutions work in four ways.  Constitutions constrain politics when political actors refrain from acting on their all-things (but the constitution)-considered best judgment because that judgment is inconsistent with constitutional norms.  Abraham Lincoln hated slavery but declared throughout his political career that he would return people escaping slavery to their putative masters.  Constitutions create politics when constitutional texts empower political actors to act on their all-things-considered best judgment.  The Thirteenth Amendment empowered antislavery advocates to ban slavery in the former confederate and border states.   Constitutions configure politics when governing institutions are structured in ways that privilege the selection of particular powerholders and particular policies.  The Constitution of 1787 created institutions the framers thought would guarantee that slavery would be abolished (or buttressed) only when a bisectional consensus supported emancipation (or expansion).  Constitutions constitute politics when constitutional texts help fashion a citizenship that shares the values underlying those texts.  At least some framers thought the absence of the word “slavery” in the constitutional text would communicate to the constitutional citizenry that human bondage violated natural law.

Most constitutional provisions reflect efforts to constrain, create, configure, and constitute politics.  Consider constitutional protections for free speech.  Such provisions may constrain persons who would otherwise be inclined to suppress political dissent.  Such provisions may empower proponents of free speech, perhaps in the federal judiciary, to constrain state actors inclined to suppress political dissent.  A regime in which free speech is relatively unrestricted configures politics in ways that empower those people who can best master the communicative technologies of their time. Constitutional provisions that protect free speech may help fashion a citizenry committed to protecting free speech.  State equality in the Senate constrains persons who believe in representation by population, configures politics by enabling low population states to receive far more than their fair share of federal funds, and constitutes politics when people assume that equal state representation is a natural feature of governance in the United States.

Constitutional provisions may not work as reformers intended for numerous reasons.  Unsympathetic constitutional authorities may disobey constitutional commands. Many slaveholders held persons as slaves even after the passage of the Thirteenth Amendment.  Unsympathetic constitutional authorities may neglect to exercise constitutional powers.  When Democrats regained control of Congress in the 1890s, they immediately repealed legislation implementing the Fifteenth Amendment.  Unsympathetic constitutional authorities may deny that violations of constitutional rights are taking place or the need to exercise constitutional powers.  Democrats and former slaveholders repeatedly claimed that free persons of color were adequately protected by local officials from very sporadic violence by white supremacists.   Unsympathetic constitutional authorities may invalidate constitutional provisions that they claim are inconsistent with fundamental constitutional commitments or were not adopted by constitutionally processes.  Prominent Democrats in the 1860s insisted that the Thirteenth and Fourteenth Amendments were unconstitutional on both substantive and procedural grounds.  Unsympathetic constitutional authorities may capture constitutional provisions by using those provisions to advance different ends than those championed by the original constitutional reformers.  White supremacists after the Civil War claimed that Reconstruction violated the post-Civil War Amendments by giving special rights to persons of color.  Unsympathetic constitutional authorities may circumvent constitutional provisions by finding another constitutional path for achieving purposes antithetical to the constitutional reform.   Former confederate states first substituted various voting tests and poll taxes, and then gerrymandering and onerous registration requirements for bans on African-American voting.  Unsympathetic constitutional authorities may circumscribe constitutional provisions by unduly narrowing their scope.  The Supreme Court in The Civil Rights Cases (1883) held that racial prejudice was not a badge or incident of slavery and in Plessy v. Ferguson (1896) held that separate but equal was not race discrimination.

Sympathetic constitutional authorities confront problems of incompetence, inadequacy, inconsistency, and inefficiency when implementing what they believe are desirable constitutional reforms.  Problems of incompetence occur when the people and constitutional institutions combine to generate a leadership class that does not know how to implement constitutional reforms successfully.  Reconstruction failed in part because many Republicans did not realize that ordinary southerners could not be induced to support racial equality once the antebellum southern elite was politically neutered.  Problems of inadequacy occur when the constitution denies constitutional authorities the powers they need to implement constitutional reforms successfully.  Many Republicans thought constitutionally problematic ongoing martial law in the former confederate states and presidents who recognized the need for a military presence could not on their own provide the funding for the number of federal troops necessary to protect persons of color and former southern Unionists.  Problems of inconsistency result when constitutional authorities discover that as a result of unanticipated circumstances various constitutional goals conflict.  Republicans who cried "Free Soil, Free Speech, Free Men, Fremont," in 1856 discovered in 1866 that allowing such southern racists as William McCardle to speak freely threatened black liberty.  Problems of inefficiency result when the constitutional processes for implementing a constitutional reform are too cumbersome to enable constitutional authorities to make timely decisions or create gridlock between sympathetic constitutional authorities who dispute the best means of achieving consensual constitutional ends.  Disagreements among Republicans delayed consensually needed legislation during the short period in which substantial northern support existed for racial equality. 

Constitutional theory that explores how constitutions work and do not work stresses how constitutional politics are configured, treating constitutional constraints as a largely peripheral matter.  Constitutional purposes typically require reformers seeking to constrain constitutional politics to rely on such gross or essentially contested concepts as “liberty,” “equal protection,” or, for that matter, “diversity.”  Unsympathetic constitutional authorities have too many means for frustrating constitutional reforms that rely on such constraints, even when opponents of a constitutional reform do not engage in outright disobedience.  Constitutional reforms are likely to be secured in practice only when they configure constitutional politics in ways that privilege the selection of sympathetic constitutional decision makers and constitute constitutional politics in ways that maintain and increase the number of citizens who support and identify successfully sympathetic constitutional decision makers.

Constitutional reformers in the United States during the eighteenth and nineteenth centuries recognized that constitutions work best when constitutions configure constitutional politics in ways that empower constitutional authorities with the right combination of capacities, interests, and values to pursue constitutional ends.  The persons responsible for the Constitution of 1787 and the Constitution of 1868 emphasized constitutional politics, spending almost no time expounding on what anachronistically came to be called “the original public meaning” of constitutional constraints and constitutional powers.  Alexander Hamilton captured the constitutional spirit of the founding generation when in Federalist 31, by far the most important of the Federalist Papers, he declared, “all observations founded upon the danger of usurpation, ought to be referred to the composition and structure of government, not to the nature of extent of its powers.”  Representative Thaddeus Stevens called for constitutional reforms that reconfigured constitutional politics when, opening the congressional debate on Reconstruction in the Thirty-Ninth Congress, he insisted that the fundamental purpose of proposed post-Civil War constitutional amendments was to “secure perpetual ascendancy to the part of the Union . . . so as to render our republican Government firm and stable forever.”

Efforts to configure and constitute constitutional politics have pitfalls.  Reformers misconfigure (better word desperately needed) constitutional politics when either because their initial assumptions about constitutional politics were wrong or became outdated, the constitutional politics they create has different biases than those intended.  When population before the Civil War flowed northwestward instead of the expected southern direction, the House of Representations became a bastion for the free states rather than the expected bulwark for slavery.  Reformers missocialize (again, better word desperately needed) constitutional politics when practices thought to fashion a citizenry with one set of values fashion a citizenry with a different set of values.  Contrary to Republican expectations, Section Three of the Fourteenth Amendment's brief political neutering of the antebellum southern political elite did not foster the rise of a more racially egalitarian southern elite.

Post-New Deal Constitutionalism was Publian in structure, but not in theory.  The Constitution during the mid-twentieth century worked to protect to some degree free speech and racial equality because fairly non-ideological parties foisted constitutional problems on to elites in the judiciary (and executive branch) who, regardless of partisan affiliation, tended to have liberal opinions on the constitutional issues of the day.  Kevin McMahon documents how Republicans and Democrats in the executive branch sought to empower courts to strike down Jim Crow schooling.  Academic theory dismissed structure.  Obvious to the political foundations of this constitutional regime, many law professors pronounced federal courts as a “forum of principle” that could be counted to stand above constitutional politics no matter how the rest of the regime was configured.  The only constitutional theory worth doing was constitutional interpretation that explained to various judges how they could interpret the Constitution correctly.

The truncated constitutional theory of the New Deal order is outdated.  The Roberts Court has taught some, but not all law professors that courts are part of the political regime, even as the judiciary does not precisely mirror the sentiments of any other part of the political regime.  How the Constitution configures politics matters when the issue is whether courts will protect abortion rights or whether Congress will impeach and convict a president for inciting an insurrection.  Those who wish for a different constitutional politics, or for that matter, wish to sustain contemporary constitutional politics, should return to a more traditional constitutional theory that explores how constitutions work and consigns to a relatively tiny corner concerns with what constitutional provisions mean.

Constructing Enumerated Powers

Andrew Coan

(coauthored with David S. Schwartz)

In a previous post, we canvassed several strong arguments that the original public meaning of the Constitution’s enumerated powers was indeterminate. What follows if those arguments are correct? Under modern originalist orthodoxy, the answer is straightforward. Constitutional decisionmakers must resolve the status of enumeration on other grounds, through “construction” or gap-filling. Originalists disagree among themselves about how construction should work, but most acknowledge that judicial precedent and historical practice have a significant role to play. Contrary to conventional wisdom, it is these two factors—not original public meaning—that supply the most persuasive argument for a Constitution of limited, enumerated powers or “enumerationism.” But here, too, the case for enumerationism has been far more assumed than argued for. 

A clear-eyed examination of the history reveals a far more complicated picture than conventional wisdom would suggest.  For most of American history, the Supreme Court has found some way to accommodate a federal legislative power to address all national problems, recognizing many significant unenumerated powers in the process. Congress, too, has routinely legislated as if it possessed a general power to address any plausibly national problem. The history is complicated, and we cannot provide anything like a definitive account in a blog post. But there are strong arguments that a toothless and ceremonial enumerationism is more consistent with historical practice and judicial precedent than the muscular enumerationism of the modern movement-conservative imagination.  

For a fuller discussion, see our new draft article “The Original Meaning of Enumerated Powers.”

The Roberts Court as Champion of Racial Justice

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Khiara M. Bridges

            The November issue of the Harvard Law Review is always dedicated to the Supreme Court’s most recently concluded Term. I had the honor of writing the Foreword to the November 2022 issue of the Review. The October 2021 Term included cases that touched on some of the most politically salient issues in the U.S. today, including climate change, the place of religion in public life, guns, and abortion rights. One part of my Foreword is an investigation into the role of race in two of the Court’s biggest cases last Term—New York State Rifle and Pistol Association v. Bruen, in which the Court interpreted the Second Amendment to protect a very broad right to bear and carry arms, and Dobbs v. Jackson Women’s Health Organization, in which the Court overturned Roe v. Wade and returned the question of abortion’s legality to the states.

The Foreword analyzes the way that race operated in those cases. It argues that although neither case is about race—and although the Court did not have to talk about race to adjudicate the constitutional question before it—the Court deployed race in the service of its preferred policy outcome. To be precise, the Court framed its decisions in both cases as ones that would be work to undo racial hierarchy and racial subordination. In essence, the Court positioned itself as a champion of racial justice.

Why Amendment "Difficulty" Matters

Stephen Griffin

For the Balkinization 20th Anniversary Symposium

My commemorative post to Balkinization is from my current project developing a theory of constitutional change for the U.S. case.  This part of the project discusses why the “difficulty” of constitutional amendment under Article V matters.  This topic is highly relevant to the “state of constitutional theory” because although important, it operates largely as an out of sight assumption.  But if it is a hidden assumption, it is an issue that makes a difference.  For example, in my article “Optimistic Originalism and the Reconstruction Amendments,” I wrote: “Originalist adherence to Article V as the sole legitimate means of constitutional change is a red thread that runs through and unifies what are otherwise quite disparate versions of the theory.”  Nonoriginalists or living constitutionalists have their own take on Article V, which is that change is simply “impossible.”  Historians seem to agree.  In a recent issue of The New Yorker, Jill Lepore wrote, “With the failure of the E.R.A., the Constitution became effectively unamendable.”

 That may be conventional wisdom, but there is actually a debate on the subject.  In defending the feasibility of Article V, some scholars point not only to the Reconstruction amendments, but to the raft of amendments passed in the Progressive era and later successful efforts in the 1950s and 1960s.  These episodes are offered as proof that change through Article V, while certainly not easy, is not impossible.  Scholars have also debated how to quantify the difficulty of the U.S. amendment process relative to other countries (and whether this is worth knowing!).

 Often left in the rearview mirror is why this matters.  This question spurs my attempt to turn the debate in another direction.  I contend that amendment difficulty matters to the legitimacy of the modern American state.  Indeed, when viewed from the perspective of constitutional design, American constitutionalism can be regarded as a sort of tragedy.  This is because the relative lack of amendments stems not so much from the cumbersome mechanics of Article V, but from a conscious political choice to avoid amendments unless absolutely necessary, a choice first made early in American history and remade again and again.  It is a choice that made a good deal of sense in terms of preserving the stability of the new republic.  In fact, many think it still makes sense (Lepore adverts to this).  I argue, however, that when this choice was brought forward into the very different environment of the twentieth century, it resulted in a rupture in the felt continuity of American constitutionalism that has never been successfully healed.

Was the Constitution Pro-Slavery?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Randy E. Barnett           

In recent years, I have publicly complained that members of the conservative legal movement in general—and originalists in particular—have paid too much attention to the Founding and the Framers and not enough attention to the Reconstruction amendments and the Republicans who made them a part of the Constitution. I have argued that the Constitution that needs defending from unwarranted criticism is the amended Constitution we have today, not the original Constitution of 1789. This single-minded focus on the original Constitution of 1789 has left originalism vulnerable to the now-familiar objection that the Constitution was a made by, and for the benefit of, slave holders.

Since Balkinization was founded 20 years ago, the view that the original Constitution was illegitimate because it sanctioned slavery and its framers were slave-holding knaves has moved from the margins to the mainstream of academic thought and has now entered the public’s consciousness. According to this narrative, because of this original sin, it is immoral to adhere to the original meaning of the Constitution (even as amended). Statues of the Framers should be removed from public view. Their images should be treated with the same scorn as those depicting Chief Justice Roger Taney, the author of the execrable decision in Dred Scott v. Sandford.

            In recent years, originalist scholars have done important work rectifying the previous neglect of the original meaning of the Fourteenth Amendment. This work includes not only Evan Bernick’s and my book The Original Meaning of the Constitution: Its Letter and Spirit. It also includes the writings of such originalist scholars as well as Nathaniel Chapman, John Harrison, Kurt Lash, Michael McConnell, Ryan Williams, and Ilan Wurman.

I still urge the grassroots of the conservative legal movement to focus more on the Republican party and Reconstruction, and less on the Framers and the original Constitution. But in this post, I want to challenge the starkly negative pro-slavery characterization of the original Constitution and its Framers that is today offered to undercut the legitimacy of our Constitution. Ironically, today’s vociferous critics of the Constitution and the Framers have adopted the views of the justly maligned Roger Taney.

I begin by reframing the Founding.

Originalism, Meet the Federalist Constitution

Andrew Coan

(co-authored with David S. Schwartz)

A growing literature aims to excavate and recover “the Federalist Constitution”—that is, the “vision of the Constitution held between 1787 and 1800 by leading figures in the struggle for constitutional ratification and, thereafter, by leading figures in the Federalist Party.”  This literature has done much to unsettle received Jeffersonian-Madisonian narratives of the American founding which treat a limiting enumeration of powers as “the essential characteristic” of the national government established by the Constitution.  In fact, many prominent Federalists of the founding generation took a very different view, as their Anti-Federalist opponents well recognized. But thus far, this literature has been predominantly historical and historiographical. As such, it has mostly focused on the views, intentions, and political projects of particular individuals and groups. It has not frontally engaged originalist arguments for limited, enumerated powers on their own terms—that is, in terms of original public meaning. 

Our new draft article takes up this gauntlet. We begin by demonstrating that the original semantic meaning of enumeration was fundamentally indeterminate. All of the standard textual arguments for limited, enumerated powers—what one of us has called “enumerationism”—require that the reader presuppose or assume their conclusion. Read without a presupposition of enumerationism, the original semantic meaning of the text is perfectly consistent with a federal government empowered to address all important national problems. Indeed, several of the Constitution’s provisions—including the General Welfare Clause, the Necessary and Proper Clause, and the Preamble—are most naturally read to create just such a government, though their semantic meaning does not decisively resolve the question.

Dobbs, the Politics of Constitutional Memory, and the Future of Reproductive Justice

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Reva Siegel

In Dobbs, the Supreme Court justified its decision to overrule Roe by claiming it was aligning America’s constitutional law with its history and traditions. Dobbs proclaimed that it was cleansing the law of politics. But in fact Dobbs was playing Memory Games in which “originalist judges ventriloquize historical sources.” Dobbs’s claims about America’s history and traditions are constructions designed to justify the Court’s decision to overrule Roe.

Constitutional memory has a politics. Constitutional interpreters continuously make claims on our past in arguing about who we are and what we should do. These claims on the past—in originalist and other modes of constitutional argument, inside and outside the courts—legitimate the exercise of state power.

For this reason, constitutional memory claims are value laden and interested—whether true, false, or as they most commonly are, selective in their account of the historical record.

To commemorate Roe’s fiftieth anniversary—and to illustrate the critical and constructive power of the concept of constitutional memory—I show how Dobbs’s employed selective claims about  America’s “history and traditions” to celebrate inequality as freedom, and I suggest how different claims on constitutional memory might mobilize critique and resistance to the vision of America Dobbs celebrates.