Friday, August 10, 2007

Matt begins the conversation


Matthew Franck was gracious enough to respond to my earlier discussion here , here, and here. (Hat tip to Jonathan Adler, who also adds some useful comments of his own here).

Matt reports that he read the first of my articles on original meaning but didn't get around to the second. I wish he had, because it contains responses to critics of various stripes that are relevant to many of the things he says. It also would have prevented him from a few misreadings, one of which he corrects along the way.

Matt says many interesting things in his postings, but there are two that are particularly worth noting, and may serve as a good way in to understanding the similarities and differences between our views. At one point he says, "I have yet to encounter a federal regulation of commerce that I thought the Court could properly overturn on nothing other than an interpretation of the commerce power." At another, he says "Readers will notice a pattern [in the cases where my theory of interpretation produces a result contrary to my policy preferences]. All my "gee, I'm stuck with that one" conclusions involve criticisms on my part of the Court improperly using its power to void the acts of other authorities."

I'd be particularly interested in having Matt explain is why he thinks the original meaning of the Commerce Clause imposes almost no constraints on federal legislation. Does he believe, for example, that Darby, or Wickard, or Heart of Atlanta and Katzenbach v. McClung were correctly or incorrectly decided? Does he believe that Lopez and Morrison were correctly or incorrectly decided? How does this square with his theory of originalism? I think his answer will tell us a great deal about any similarities or differences between his account of how you apply the text in present day circumstances and my account of text and principle. (By the way, Matt, the idea of original expected application includes your helpful notion of "originally foreseeable application," so it's not as much of a straw man as you might have thought. That's why, for example, an expectations-based originalist can take account of changes in technology).

The reason I ask about the commerce clause cases as the place to start the discussion is that Matt's originalism sounds very much like a theory of judicial restraint. Now I for one don't think that originalism and judicial restraint are the same thing. For one thing, judicial restraint is a theory of how judges should act, not a theory of how people in general should interpret the Constitution. Judges are not the only people with the right and the duty to interpret the Constitution. For another, judicial restraint might not be faithful to the Constitution in many cases, especially when the judge believes that the best reading of the Constitution is that certain activities of the other branches are beyond their powers or otherwise unconstitutional. However, in the brief discussion that Matt offers it seems he thinks that originalism and judicial restraint dovetail very significantly. I'd be interested in why that might be so. That would help us focus where we are in agreement and where we disagree.

A second thing I'd like to hear Matt on is his view of sex equality law. It was my impression in reading some of his criticisms that he might begin from the premise that the courts' current sex equality law is wrong and that sex classifications deserve no special scrutiny. All this would be relevant to knowing how to apply the Fourteenth Amendment in light of its enactment history. Does Matt think, for example, that the marital coverture rules are still constitutional and that BradleyBradwell v. Illinois was rightly decided? If that's so, I'd like to know it, because it would help us see where we agree and disagree. In particular, I'd be interested in whether he has any criticisms of the history of the Fourteenth amendment that I've laid out.

And, by the way, I really think he should read the second article!


"Balkin seems to think there is no difference between the majority of a later generation coming to believe sexual discrimination is wrong and therefore legislating against it, and the minority of a later generation coming to believe it is not only wrong but should be held unconstitutional, and therefore persuading judges so to hold it."

I don't think this language leaves any room for doubt that he believes gender equality is not constitutionally required. I find it interesting that he gave vague support to affirmative action.

There can be no real doubt that Franck is combining original meaning and judicial restraint. It seems he believes judicial restraint is constitutionally required through deference to the political branches on all modern-day questions. Does this represent a broader attempt at a coherent interpretive theory? I believe Scalia and Franck both think it does. I also think they're over-simplifying the problem.

I am still confused why Scalia-type originalists do not distinguish between constitutional rules which have relatively clear and fixed meaning regardless of the context (e.g. no ex post facto laws, the president must be natural born) and constitutional principles which must be applied contextually. In either case, judges must judge - that's their job. What is considered "unreasonable", or "excessive", or "cruel" certainly changes over time. Deference to Congress in domestic matters or the executive in foreign affairs and treaties has its place. However, judges acting as rubber stamps for the political branches based on loosely logical or highly attenuated reasoning (albeit still somewhat rational) seems an abidcation of constitutional duty. Carried to its extremes, Franck's view seems to have no role for the courts in interpreting the Constitution - only applying it as it is historically believed to have operated. (And what of conflicting views of history?)

I wonder how he feels about the general warrants arguably permitted under the new FISA legislation - or historically-prevalant flag desecration laws. It is beyond naive - especially in today's environment - to suggest that the political branches act strictly in accordance with their good-faith interpretation constitutional powers and requirements rather than politically - sometimes knowing full well that what they are doing is constitutionally suspect.

Then again, perhaps his bias is shown in the belief that Truman's seizure of the steel mills to support an undeclared war presenting no immediate threat to the nation was not only constitutionally permissible - but "smart". I respectfully dissent.

-- The Casual Observer

Re: The Commerce Clause

Could it possibly be that Mr. Franck is straying from the original public meaning/original expected application of the Commerce Clause when he concedes - implicitly - that Wickard, for example, was correctly decided? Certainly, the Anti-Federalists would have been apoplectic about a Wickard principle; no doubt Wickard was not part of the original expected application of the Commerce Clause.

I daresay that Mr. Franck is engaging, in *his* interpretation of the Commerce Clause, in Balkinian original meaning interpretation of the Constitution.

Franck: Several times Balkin tries to baptize this faux originalism in the waters of democratic legitimacy.

Here's the crux, and it's the same old story. It's their flag, not our flag, it's their freedom, not our freedom, and it's their "originalism", not our originalism. Pare away the brambles and it comes down to this, where you or others would respond to the illegitimate and disingenuous invocations of "originalism" by the likes of Scalia, Franck tries tie you up with a "no true originalist" argument, thereby never having to deal with the disingenuous, utilitarian and intellectually bankrupt use of the term at the hands of his partisans.

Just because he's in academia doesn't mean he's interested in academic dialog. Character assassination and rhetorical shenanigans seem still to rule the day on the so-called "right".

The shifting nature of language and understanding is not a subject about which reasonable people of good faith can disagree. Language is fluid, and expectations are fluid, and law is fluid and inexact, and justice is easy when everyone in the room agrees. Some of us are still interested in pursuing that Justice, through Law, which can be found in the face of disagreement. Franck and his ilk seem disinterested in such pursuits, at least so far as such pursuits are inconsistent with partisan posturing.

The Casual: I also think they're over-simplifying the problem.

I am still confused why Scalia-type originalists do not distinguish...

I think this is wrong. I suspect they indeed do distinguish all the things you mention, plus one other: They distinguish between what they say is their reasoning and what their reasoning actually is. Now, this may be a matter of insufficient self-awareness and introspection, in which case one would predict a certain kind of cognitive dissonance that might explain the tenacious pugnacity of certain right-wing voices. It might be a matter of cold, cynical, "public speech versus private speech" decisions. Either way, we know of a fact that the confluence of religiosity and authoritarianism which currently defines the "right" rests on a generally anti-intellectual foundation which must avoid nuanced distinction at all cost. Over-simplification and refusal to genuinely consider nuance with non-partisans is an unchanging part of our political landscape. Failing to see this, being endlessly surprised and dismayed by it, is the single biggest thing working against liberals/progressives.

Marty did the same thing to Doug Kmiec a while back. Now that they are selectively censoring comments, it is hardly a fair debate anymore. My advice would be to stay away from this site.

Do as you say, not as you do?

I am not a distinguished professor like Franck or Kmiec -- who should concentrate on more productive tasks than being misquoted, out of context, and censored here -- that being said, perhaps you've noticed that I have cut my postings way back. Consider it an early birthday gift to our host ; )

Here's a thought. If everyone just ignored Charles and didn't bother to comment on any of his postings, perhaps he'd just stop posting.

I'm not advocating intellectual monochromacticity and I welcome reasoned comments -- whatever else you want to say about Bart he at least is usually substantive -- from whatever ideology. But the incessant pissing matches that devolve in name calling are unhelpful and, in my opinion, contributes to posters turning off the comments feature.

Anyways, enjoy your weekend everybody.

For the record, I've never called any commenter a name here -- I do agree that ignoring the name-callers would be most helpful though -- I also hope everyone has a nice weekend, and in case I don't post on Monday either: Happy Birthday to Jack Balkin -- he will officially be 51 years old : )

Calvin TerBeek: I'm not advocating intellectual monochromacticity...

That's a straw man repeatedly raised, the irony of which is that diligent use of this and similar bits of misdirection and misrepresentation frequently drives signal:noise toward zero. That you raise the issue shows, to my eye, the efficacy of baiting inflammatory lures with ostensibly substantive commentary.

Don't feed the trolls is always good advice, but if it were practical advice we wouldn't hear it so often; trolls excel at eliciting engagement. Having a gatekeeper willing to properly handle even the smoothest of trolls would be nice too. Our host's goals would unarguably be better met by closing the door on folks whose demonstrable M.O. is illegitimate simplification and polarization of complex issues.

Hope your weekend rocks. ;)

As you now proceed to debate "gatekeepers v. trolls" I will simply leave you with these once-grand ideals:

". . . Democratic culture is about individual liberty as well as collective self-governance; it is about each individual’s ability to participate in the production and distribution of culture.

Freedom of speech allows ordinary people to participate freely in the spread of ideas and in the creation of meanings that, in turn, help constitute them as persons. A democratic culture is democratic in the sense that everyone — not just political, economic, or cultural elites—has a fair chance to participate in the production of culture, and in the development of the ideas and meanings that constitute them . . ."

I think you are too patient with Mr. Franck. No one should get out of First Year Constitutional Law without grasping the distinction between originalism and judicial restraint. Since he doesn't, and purports to be an expert on the subject for a national political publication, he's either stupid or dishonest.

Pith Lord: I think you are too patient with Mr. Franck.

Assuming that's directed at Prof. Balkin, it's probably not just patience but professional collegiality, assuming that the chap in question is this Matthew Franck. That was the context for my statement, upthread, "Just because [Franck]'s in academia doesn't mean he's interested in academic dialog."


That makes it worse. The man is clearly not operating in good faith.

I've read Dr. Franck's book on the imperial judiciary (interesting and thought provoking if eccentric)and worked in an academic setting with him. He's a very learned man on the Supreme Court, but in true Straussian fashion he does not debate (or engage in any meaningful way) with those who disagree with his fundamental axioms (notice his boast on Benchmemo's that "life is too short" to even check on Balkin's answer). Conservative scholars have a whole little sub-world in which they feel safe and snug, venturing out is something that one does rarely. But, it's about time JB and the others address the Benchmemo's crowd which hide in their "ideologically correct" venue taking potshots at others attempts at answering difficult questions while fearfully avoiding offering their own (especially if such answers would upset the conservative orthodox that fete them).

Is the reference to "Bradley v. Illinois" about _Bradwell_ v. Illinois (whose majority opinion was by Justice Bradley)? If so, should fix typo.

Unfortunately, life IS too short.

It is reasonable to prefer the constitution of the UK to that of the US. It is not reasonable to claim that the latter is the former.

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