“A So-Called ‘Living Originalist’ Attempt to Unseat the Real Constitution,” By Kevin Gutzman
Jack Balkin
Writing in The Washington Post for July 11, Yale Law School’s Prof. Jack Balkin sketches out a proposal for liberal academics to remake constitutional law along lines that are “both originalist and living constitutionalist.” His argument is that liberals in legal academia and on federal courts can reclaim the Constitution for their aims—“liberty and equality”–and launch the country on a new period of “originalism” in the tradition of Justice Hugo Black.
To hear Balkin tell it, federal courts are now dominated by conservatives who have “fundamentally reshaped voting rights, church-state relations and campaign finance regulation (to name just a few areas).” Yet, his idea of fundamental reshaping amounts to very little. In its wake, the Voting Rights Act of 1965 still applies in every state, with only the minor change that certain states will no longer have to have their voting procedures pre-cleared by the federal Executive Branch; the Incorporation Doctrine still leaves federal judges in control of the states’ religion-related policies; and Congress still regulates Americans’ political expenditures, unless they are members of certain favored classes such as the owners of newspapers or are wealthy candidates who fund their own campaigns. In short, “fundamental change” has been pretty inconsequential.
Conservatives, says Balkin, have been calling for “restoring a lost Constitution,” a “project” that is “often quite radical in its implications.” Liberals should counter by calling for taking back the Constitution themselves, and he espies the prospect that they soon will do so. The “proudest moments” of America’s “constitutional tradition,” he says, “are liberal and egalitarian,” and this includes “expansion of voting rights and equality for blacks and women.”
Notice the subtle shift here from discussion of the Constitution to the idea of “the American constitutional tradition.” The latter often has nothing to do with—is in fact often completely at odds with—the former. In general, it involves imposition of the latest left-wing projects on the country in the name of the Constitution.
Take “expansion of voting rights and equality for … women,” for example. The first part of that formula was achieved in much of the Mountain West via state constitutional processes, and in the remainder of the country via a federal constitutional amendment. Here we see essentially nothing of the project in which Balkin is involved.
The “equality” portion of the project has a more complicated history. Protection of women came to be mandated by the Civil Rights Act of 1964 via what was intended as a poison pill amendment. Congress undertook to legislate in this matter under the dubious, virtually all-inconclusive, Commerce Clause power bequeathed it by the “Revolution of 1937.” That is the term used by scholars to refer to the Supreme Court’s New Deal-era abandonment of its chief constitutional task: policing the boundaries of congressional power. From 1937 to 1995, no significant federal statute was held to exceed Congress’s Commerce Clause power.
Proponents of women’s legal equality argued that this did not go far enough, and so they advocated an Equal Rights Amendment (ERA). Sent to the states for their ratification in 1972, it failed to win 38 states’ ratifications. One “triumph” of the liberal “constitutional tradition” in our lifetime is to have established a body of law treating the 14th Amendment’s Equal Protection Clause as essentially amounting to the ERA, including Roe v. Wade, the recent spate of gay-marriage cases, etc.
Perhaps the policy results of this line of cases are desirable, perhaps not. Evidently voters did not think they were, else the states would have ratified the ERA and/or there would not have been statutes treating men and women differently for federal courts to invalidate. What this story amounts to is that regardless whether the people vote against them, the people who control the legal culture (such as professors at Yale Law School) will eventually impose their favored policies upon us in the name of the Constitution anyway. Knowing this enabled me to predict the final result of the gay-marriage debate—a string of popular votes against gay marriage, followed by federal courts’ imposition of it—on Sirius/XM Satellite Radio’s The Mike Church Show as early as 2007.
Balkin refers in his piece to “how the Constitution actually grows and develops.” Here we see an alternative to the schoolboy understanding that written constitutions are adopted by elected representatives in some kind of ratification process, and then they bind officials until and unless formally amended by a similar process. Instead, in his words, “the heart of the American constitutional tradition lies in [popular political] mobilizations, which have changed the constitutional common sense of the nation and made us the country we are today.”
Here Balkin draws upon the work of his Yale Law colleague Bruce Ackerman, who has written three books endeavoring to show that America has had four great constitutional moments: the 1787-91 Founding, the Civil War Amendments, the New Deal, and the Civil Rights Movement-era changes to the legal system. All four, per: Ackerman, are of equal legitimacy and equally binding. They “have changed the constitutional common sense of the nation and made us the country we are today.” History professors will recognize that last clause from many an undergraduate blue book, where a seemingly befuddled student straining to fill space offers that the Revolution, Mexican War, Civil War, 16th Amendment, Roe v. Wade, or whichever other important event she has been told to evaluate, must have had net positive effects on America because it “has made us….”
Another way of describing what happened in the New Deal-era jurisprudential revolution and the Civil Rights Movement-era changes in the constitutional culture is that a majority decided it could have its way, and so it had it. Put more poetically, “The strong do what they can, and the weak bear what they must.” From an originalist point of view, the fact that a president who wins four elections can fill the Supreme Court with nine appointees who will declare that what had always been unconstitutional is now constitutional does not amount to legitimate constitutional change. Rather, it is abandonment of the idea of constitutional government.
Precisely why, then, does Balkin bow in the direction of the “originalism” totem? What does he mean by it? In his conception, the Constitution … pardon me, the “constitutional tradition” leads us toward “liberty and equality.” Seemingly, “originalism” means quoting some prominent figure or other from the Revolution in the process of launching each new strike on behalf of those amorphous concepts.
He offers up a laundry list of examples how current liberal academics are using this tactic. One, Harvard Law’s Lawrence Lessig, proposes to restrict political speech in the name of republican equality. John McCain defended McCain-Feingold on the ground that incumbents should not have to respond to too much criticism immediately prior to an election, but Lessig would defend the Arizonan and future senators against that possibility in the name of equality. On one hand, the crazy old idea that political expression should be free; on the other, what Balkin and the like call “equality.”
Balkin’s other examples are equally unpersuasive. For example, since anti-oligarchy sentiment made an appearance in early Americans’ thinking, therefore Congress should be understood as having a power to legislate to prevent the concentration of wealth. In relation to his own work, Balkin offers that, “it explains why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety and the environment are fully consistent with the basic framework created by the people who adopted and amended our Constitution.” Are you surprised?
Anyone interested in testing that thesis should merely take a look at James Madison’s Bonus Bill Veto Message. I doubt that anyone reading this will be interested in testing the thesis.
Balkin’s essay, like his book and the books by Ackerman and others he mentions, are all contributions to the tradition most aptly summarized by Justice William Brennan in his “Rule of Five”: “With five votes, I can do anything.” What Balkin stands for are new departures from actual constitutionalism. Having divined that the Constitution is really a license to pursue “liberty and equality”—rather than, say, a republican, federal constitution—Balkin has the effrontery to tell us that his is a form of originalism.
Why does he do that? He explains himself thus: “If you start by accepting that the difference between conservative and liberal views of the Constitution is that one attempts to be faithful to the text and to the founders’ vision and the other does not, well, that’s just not a very helpful way for liberals to talk, either to themselves, or to the general public. And of course, that’s precisely why modern movement conservatives sought to frame the choice in that way.”
Bill Clinton called government spending “investment,” and Balkin calls judicial amendment of the Constitution “living orignalism.” I am unsure which “movement conservatives” Balkin means here. Because it is a useful way of denigrating liberals certainly is not the reason why I am an originalist. I refused to sign an amicus brief in McDonald v. Chicago because I consider the Incorporation Doctrine unfounded, and I have argued that Kelo v. City of New London was rightly decided, though for the wrong reasons, on the same basis. I have also argued that gay marriage is a 10th Amendment issue, as is abortion, and that affirmative action does not implicate the 14th Amendment’s Equal Protection Clause—all on the basis of the original understanding. Instrumentalism is not the ground of my constitutional views.
I cannot say the same for Jack Balkin. I cannot credit “originalism” that justifies everything anyone in the Democratic Party wants to do, without ever requiring that the Constitution be amended before it can be done. In short, I believe that Madison’s 1817 veto message rests on what the people were told in the Virginia Ratification Convention of 1788—and what leading Federalists said in at least seven other states, to my knowledge—about the kind of government they were asking the states to agree to. Contrary to what Balkin has written elsewhere, his position is also contrary to the hermeneutical approach they were told to expect their federal officials to take.
Jack Balkin’s “living originalism” is yet another type of pseudo-constitutional garb for non-constitutional government. His goal is simply to perpetuate the system under which we have lived since the Revolution of 1937. Because he is a professor at Yale Law School, he has a forum in The Washington Post.
One Response to ““A So-Called ‘Living Originalist’ Attempt to Unseat the Real Constitution,” By Kevin Gutzman”
“Jack Balkin’s “living originalism” is yet another type of pseudo-constitutional garb for non-constitutional government.”
Thank you, Kevin, for your straight forwardness.
Respectfully, John