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.

A Constitutional Blog in Constitutional Time

Guest Blogger

For the Balkinization 20th Anniversary Symposium

David Pozen

Balkinization isn’t what it used to be. 

When I was a law student, from 2004 to 2007, I thought Balkinization was riveting stuff. I visited the site regularly. I read every post. I admired the authors. I felt like they were my teachers, as well as models of engaged scholars, and their time-stamped entries an important supplement to my formal legal education. 

Fifteen-odd years later, it’s hard to imagine my own students feeling that way. The vast majority of them say they have never heard of Balkinization. The vast majority of posts, Blogger tells me, are perused by fewer than 200 people; many have “view counts” in the double digits. I don’t have directly comparable data from the mid-aughts, but it appears the readership was a good deal larger then. Paul Caron reported in October 2008 that over the previous twelve months, Balkinization had received 1,132,377 visitors and 1,962,322 page views. 

Qualitatively, too, the blog loomed larger. It was routinely characterized as “influential.” “‘Balkinization,’” Lyle Denniston wrote in 2006, “is often visited, and deservedly so.” The Weekly Standard described Balkinization as “much-read.” Richard Posner sang its praises. Professional journalists and congressional staffers looked to it for legal guidance. The blog’s arguments, the Washington Post observed on the day of President Obama’s first inauguration, are “often cited by members of the Obama team.” 

The contributors to Balkinization are as smart as ever. The subjects of discussion are as vital as ever. And the eponymous Jack Balkin has only become more renowned over the past two decades. Yet whereas the blog helped shape the constitutional conversation in the mid-2000s, at least in certain elite circles, it now seems to play a more peripheral role. What explains the apparent decline in influence, and what might this suggest about the state of American constitutionalism?

Why Jack Balkin is Kindling

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Andrew Koppelman

After Jack invited me to join Balkinization in 2007, he had to work pretty hard to get me to do it.  Resistance was foolish.  My work here led me to produce my two books on libertarianism – most recently Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed.

     I became interested in libertarianism by accident.  In 2010 I was invited to give a presentation about recent constitutional challenges to Obamacare.  I hadn’t followed that litigation.  I looked at the objections and concluded that they were nonsense, as many other scholars did.

Then, to the surprise of many, two federal district courts declared the law unconstitutional.

I got upset.  The reasoning was flagrantly bad, manifestly driven by the judges’ political views.  So I wrote up my responses to those decisions and posted them on the blog.  More such decisions kept coming.  With only a few exceptions, judges appointed by Republicans accepted arguments that were inconsistent with nearly two hundred years of settled law.

Had I not had the privilege of easily publishing short, technical legal analyses, I wouldn’t have started working in this area.  But I did, and eventually, as the Obamacare litigation built up momentum, I became a prominent enough voice that Oxford University Press solicited a book, which became The Tough Luck Constitution and the Assault on Health Care Reform.

A Napoleon Complex

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Gerard Magliocca

          Congratulations to Balkinization on its 20th anniversary. Really, congratulations to Jack, who started this community and was the only blogger for its first few years. That’s the good news. The bad news is that a constitutional problem that has consumed much of our attention since 2003 is still alive and well.

          The problem is the unbounded presidency. Balkinization began against the backdrop of preparations for the Second Gulf War and hit its stride in posts that criticized the Bush Administration’s overreach on issues such as torture, executive detention, and warrantless surveillance. While the aftermath of the September 11th terrorist attacks was bound to produce a more assertive Executive Branch, peace did not fully reset the constitutional balance. Instead, presidents of both parties have increasingly turned to dubious executive orders and emergency powers to achieve goals that Congress would not pass. Sometimes the courts eventually block these executive measures, but too often they do not.

          What explains this trend? If President Trump were the only culprit, then you could just blame his bizarre psychology. But he is just the worst--not the only--example. Political polarization is partly to blame. Past presidents wielded less power over their administrations because of the strength of rival factions within their parties. Many presidents could not simply fire a senior Cabinet member or afford to let one resign in protest over a controversial decision. If either type of acrimonious departure happened, then the faction that the former official represented could bring down the Administration. In this sense, many presidencies functioned like or even modeled themselves on the British Cabinet system. Not anymore. The party unity created by polarization removes this internal political constraint on the President. Today only the threat of widespread resignations with the Executive Branch, including some senior civil servants, seems to give presidents pause.

Toward Public Identity Constitutionalism

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Paul Gowder

I'd like to sketch out a preliminary outline of a different way to think about the relationship between constitutional law and democracy, one inspired by some of James Baldwin's remarks about the relationship between the struggle for racial equality and American political identity. This is something I've been vaguely groping toward through a variety of articles and bits of the most recent book for a few years. For present purposes, we could call it "public identity constitutionalism," although that name is tentative at best.

Begin with some context. The critics of contemporary Warren-Court-and-beyond left-leaning constitutionalism love to portray it as an enterprise without principled legal foundations.  Originalists insist that progressive constitutional jurisprudence is just unbounded "living constitutionalism" in which left-wing judges impose their politics (or their moral values or whatever) on the rest of us. But critics of originalism from both the left and, more recently, the right (the most prominent example of the latter being Vermeule's "common good constitutionalism") have tended to observe that originalists too are imposing their politics/morals on the public, because originalism is far less determinate and constraining than its proponents take it to be.

Giving Up on the Supreme Court is the Beginning, Not the End, of Progressive Constitutional Theory in the 21st Century

Guest Blogger

The Original Meaning of Enumerated Powers

Andrew Coan

The powers of Congress are limited to those enumerated in the Constitution and must not be construed as the equivalent of a general police power. This doctrine of “enumerationism” is the linchpin of a multi-decade conservative assault on the broad conception of federal powers recognized by the Supreme Court since 1937. The loudest champions of enumerationism are originalists. But even critics of originalism generally accept that enumerationism is rooted in the original public meaning of the Constitution. Indeed, it is difficult to think of a stronger—or broader—consensus on an important question of original meaning.

In a new draft article, David Schwartz and I challenge that consensus. Despite its wide acceptance, the originalist case for enumerationism is remarkably weak and under-theorized. At the same time, enumerationists have largely ignored strong arguments that the original public meaning of enumeration was indeterminate. The constitutional text nowhere says that the federal government is limited to its enumerated powers. To the contrary, several provisions—the General Welfare Clause, the Necessary and Proper Clause, and the Preamble—could plausibly be read to support a congressional power to address all national problems. The historical context of the founding era is similarly ambiguous. Many readers certainly understood the Constitution to presuppose some form of enumerationism, but many did not. 

If these arguments are correct, enumerationism falls into the “construction zone,” where history, judicial precedent, and other sources fill the gaps in original public meaning. It is history and precedent, not original meaning, that supply the strongest arguments for enumerationism. Yet the history of enumerationism is complex and fraught with contestation. For most of that history, Congress has routinely legislated as if it possessed the power to address all national problems. The Supreme Court has generally followed suit, embracing enumerationism in theory while circumventing it in practice. A constitutional construction that followed this traditional approach would pose no substantial obstacle to any important federal legislation.

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

The Constitution is in Trouble

Guest Blogger

Follow the French! : The Urgent Need to Rethink America’s System of Political Primaries

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Bruce Ackerman

            Americans confronts a host of problems in their struggle to sustain their democracy in the twenty-first century – from partisan gerrymandering to presidential war-making to …. (I leave it to you to fill in the blank.)   But one big problem has escaped attention: the fact that the two major parties hold separate primaries at which voters choose the Democratic and Republican candidates who will compete for the presidency in the general election.

            This is a big mistake. The two-party primary system is one of the most serious real-world threats to American democracy.  The French organize their election system in a very different fashion – and one that makes it far harder for nationalist demagogues to gain the presidency. [1]

        Call it the “unified primary” system. In contrast to the United States, a wide range of political parties offer up their presidential nominees in a single primary in which all voters cast their ballots. The top two candidates who win the most votes then compete for the presidency at the general election, while the others are eliminated from the final ballot. But the runners-up remain very influential -- since they will mobilize their followers to back the final-candidate whose policies are closer to their own political program.   

            This dynamic of runner-up coalition-formation is a fundamental feature of the unified system, and I hope to persuade you that it would make it much harder for Trumpish authoritarians to win the White House over the coming generation – long after Trump himself passes into history.

What Roe v. Wade Should Have Said - Revised Edition

JB

The contributors include Anita Allen, Akhil Amar, Teresa Stanton Collett, Michael Stokes Paulsen, Jeffrey Rosen, Jed Rubenfeld, Reva Siegel, Cass Sunstein, Mark Tushnet, Robin West, and myself.

This book is part of a trilogy on important Supreme Court cases. The other two volumes are What Brown v. Board of Education Should Have Said and What Obergefell v. Hodges Should Have Said.

Legitimating and Delegitimating Constitutional Theory

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Michael C. Dorf

            Constitutional law mostly comprises the rules and standards that courts purport to derive from the constitutional text, as informed by original understanding, historical development, judicial precedent, and normative considerations. I say “mostly” because courts are not the only actors who make constitutional meaning and some exceptionally clear constitutional rules need not be derived at all; no substantial contests arise over such questions as when a new Congress begins or the age requirements for being a representative, Senator, or President. Nonetheless, the Constitution is short; governing a modern country with a population of a third of a billion people is complex; and as Tocqueville observed long ago, “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Thus, the body of court-made constitutional law that fills in textual gaps is very substantial. 

            Constitutional theory is more abstract than constitutional law, but pinning down the precise difference poses challenges because the two realms overlap. We might say that constitutional theory concerns how to decide questions of constitutional law, but questions about the nature of interpretation, construction, and judicial review—which might be thought to lie at the core of constitutional theory—are also internal to constitutional law. Landmark cases from the early republic like Calder v. Bull and McCulloch v. Maryland are remembered more for their contribution to the debate over interpretation, construction, and judicial review than for their particular holdings. More recent examples abound as well. For example, an assertive conservative Court eager to move the law with respect to abortion, affirmative action, church-state separation, gun control, and more has lately sparked debates within constitutional law about originalism and stare decisis—matters that also figure centrally in constitutional theory. 

            Luckily, for most purposes it is not especially important to draw a sharp boundary between constitutional law and theory. Even so, as I explain below, those constitutional theories that have the greatest overlap with constitutional law will also have the greatest tendency to work as justifications of the work of the Supreme Court (whether or not they are intended for that purpose). Depending on one’s view of the Court’s work, that is either a feature or a bug of a constitutional theory.

When History Becomes Precedent in the OLC

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Mary Dudziak

Congratulations to Jack on Balkinization’s 20^th anniversary!

This essay takes up an important methodological problem in the way history is relied on in legal interpretation. History matters to legal outcomes – for example in originalism and in “gloss of history” analysis in the separation of powers. Historical ideas can become embedded in precedent – but history itself is not law. It is evidentiary. Understandings of history evolve over time as new evidence is uncovered and historians employ revised methods. What should happen when legal interpretation is informed by ideas about history that historians have revised or discarded?

In caselaw, lawyers and historians can rely on new historical evidence to challenge previous rulings, as the Organization for Americans Historians did in Obergefell v. Hodges. In the war powers context, however, the most relevant opinions are usually written by the Office of Legal Counsel, often relying on gloss of history analysis. When outdated historical understandings are embedded in OLC opinions, there is no open and transparent adversary process, and no corrective. Instead, the outdated history is built into OLC precedent, and lives on.

Theorizing Context

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Lawrence Lessig

We still need a way to theorize about context: That’s my plea. Here’s an example to suggest what I mean. 

Consider two opinions by Justice Scalia. The first, familiar to all; the second, the most revealing of all. 

In the first, United States v. VMI (1996), Scalia dissented from the Court’s rendering more vigorous its protection against sex discrimination. The framers of the 14th Amendment, Scalia tells us, took for granted that the amendment would not change the sex-based inequality of its time. Their “fixed notions,” as the Court criticizes them and Scalia describes them, saw women in a particular place within society, and believed the law could regulate to keep women in that place. Scalia doesn’t deny that those “fixed notions” have changed. He simply denies that that change is relevant to how the case should be resolved. The Constitution, he instructs, is to prevent us from “backsliding.” It is not the role of the Court to use its more modern, enlightened views, to push us forward. 

But it is this passage in that opinion that is most revealing: 

Much of the Court’s opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were — as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: They left us free to change.

We’re not bound, on this account, to embrace 19th-century views about women. But on this account, until amended, the Constitution is. We can, of course, pass laws that are sex neutral; but the Constitution, in Scalia’s view, can’t force sex neutrality into the law, because the framers of the 14th Amendment viewed sex inequality as not “debatable.” Sex inequality was part of the furniture of their moral universe. In Scalia’s view, that furniture is nailed to the floor. The only thing that can rearrange that furniture is an amendment to the Constitution. Until amended, the job of the Court is simply to read the text in light of the undebatables at the time the text was written. Both the text and those undebatables continue to bind until explicitly changed.

Does it really take a Theory to beat a Theory?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Mark Tushnet 

For quite a while I’ve been irritated by the aphorism that “it takes a Theory to beat a Theory” in constitutional law and interpretation.[1] It strikes me as the sort of false profundity that gets thrown around in first-year college dormitories. And it also seems to have links to the silly historical tradition of attempting to treat law as a discipline akin to the physical sciences. This post could be treated as a promissory note for a longer law-review style essay were I interested, as I am not, in developing them into that form (where the arguments would admittedly be more qualified and have some nuances that the post will omit).

Constitutional Theory in Crisis?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Julie C. Suk

When I graduated from law school twenty years ago, as Balkinization emerged in the blogosophere, con law folks were still reeling from the Supreme Court’s latest crisis of legitimacy known as Bush v. Gore.  Bruce Ackerman advised aspiring constitutional theorists of my generation to learn German.  French and Spanish, too.  If you want to do constitutional scholarship, look elsewhere, he urged. For a field that had long been about court-watching, the U.S. Supreme Court was not much to look at. Constitutional theory desperately needed some better things to watch.

The State of Constitutional Theory

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Richard Fallon 

Although I have never before written anything for inclusion in a blog, I am pleased by this opportunity to celebrate Balkinization for its remarkable contributions over the past twenty years.  As per the invitation of Jack Balkin, I write to offer a few observations about the nature of U.S. constitutional theory, the current state of the discipline, and likely future developments, especially involving originalism.

The Nature of Constitutional Theory

Despite my having written about constitutional theory for nearly forty years, the nature of the field has always struck me as parochial.  Although there are distinguished exceptions, most U.S. constitutional theorists do not concern themselves much with constitutionalism in a conceptual, global, or comparative sense, or with the optimal contents of a well-designed constitution.  Instead, we tend to focus almost exclusively on how the Justices of the Supreme Court ought to interpret, implement, or apply the Constitution of the United States.

How to Choose a Theory of Constitutional Interpretation

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Cass Sunstein

How should we choose a theory of constitutional interpretation?

The answer is simple: Judges (and others) should choose the theory that would make the American constitutional order better rather than worse. That answer is meant to emphasize that when people disagree about constitutional interpretation, they sare actually disagreeing about what would make the American constitutional order better rather than worse. 

That claim is not at all innocuous. It has bite. It rejects a widespread view, which is that a theory of constitutional interpretation might be “read off” the Constitution itself, or come from some abstract idea like “legitimacy,” or from the very idea of interpretation. For example, many “originalists” believe that their preferred approach is not a product of a choice; they insist that the Constitution makes that choice. The problem is that the Constitution does not contain the instructions for its own interpretation. 

You might want to ask: Who decides what would make the American constitutional order better rather than worse? If you ask that question, you might mean to offer an objection to my argument. Please stand down. The answer is: Anyone trying to choose a theory of interpretation. Judges; legislators; presidents; you; me; us. That’s all there is. There’s no else.

The Balkinization 20th Anniversary Symposium on the Present State of Constitutional Theory

JB

For our 20th anniversary, we are holding a symposium on the state of constitutional theory today.  I've asked over thirty people to contribute short essays, which will appear over the course of this month.

I originally began this blog as a solo blogger, but within a year Balkinization became a group blog, with a handful of regular bloggers and a much larger number of guest bloggers. The many brilliant people who have written for the blog over the years is a particular source of pride.

In the last five years or so the blog has increasingly featured symposiums on recent books and on various interesting topics. This past year, for example, we've hosted LevinsonFest, with a large and wonderfully diverse group of different contributors.

These symposiums have two advantages. First, law reviews don't review as many books as they used to, but discussing books is often a great way to talk about ideas. 

Second, through our many symposiums, the blog can feature a much larger group of writers than just the regular contributors. This 20th Anniversary Symposium is no exception. I hope you enjoy the essays!

LevinsonFest on Federation and Secession Collected Posts

Guest Blogger

Ashley Moran

Below are collected posts on the LevinsonFest 2022 roundtable on federation and secession.

1. Ashley Moran, LevinsonFest on Federation and Secession

2. Erin F. Delaney, Managing Federation: Prenups and Marriage Counseling

3. Paul Finkelman, Making Constitutional and Legal Sense of Secession and the Problem of Crybaby Losers of a Legitimate Election

4. Alison L. LaCroix, Federation, Secession, and Union

5. Cynthia Nicoletti, Why Can’t We Take Secession Seriously?

6. Rebecca E. Zietlow, Federation, Individual Rights and State Borders

7. Sanford Levinson, Secession, Marriage, and Counseling

Ashley Moran is a Lecturer and Postdoctoral Fellow with the Comparative Constitutions Project at UT-Austin and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.