Defending Progressive Originalism

Jack Balkin's theory of progressive orignalism is one of my very favorite legal topics. Here is my take. Recently, Balkin has been addressing critiques from conservatives. His most recent post is masterly:

Over at NRO, Ed Whelan has offered a series of posts commenting on my exchange with Matthew Franck. . . . Ed makes three key points, each of which is ultimately about the same thing--he wants to restrain judges and leave decisions to the political process. As I explained in my exchange with Matthew Franck, this is all very well and good, but it is in some sense orthogonal to the debate over originalism. In addition, Ed's version of originalism has many of the problems I identified in my original articles.


Ed argues that the distinction I draw between original meaning and original expectations is a false dichotomy. But the version of originalism he offers merely restates the dichotomy in much the same way that I would have. . . . In addition, Ed's argument suggests, we are not interested merely in applications per se but in the principles that the hypothetical generation would have applied and how they would have applied them. In order to determine these principles, we use evidence of how people at the time would have applied the constitutional text and their own statements of purpose and principle as data points that allow us to construct principles that will usually produce results roughly similar to the data points we started with. . . . I'm happy to add this theory-- call it hypothetical expectations originalism-- to the list of possible originalisms, but it isn't really very different in practice from what I've called original expected application.

. . . But even if we adopt all these bells and whistles, Ed's version of originalism still has all the same problems that I identified in my article. It can't explain why the Fourteenth Amendment requires colorblindness-- the history simply doesn't support it. It can't explain why cases like Loving v. Virginia are correct, because the adopting generation would have seen laws banning interracial marriage as a question of social equality, not civil equality, and therefore untouched by the Fourteenth Amendment. The evidence also suggests that Congress thought it could make grants to free blacks (including blacks who had never themselves been enslaved) without running afoul of the Constitution, and it suggests that Adarand, Croson are wrongly decided. Ed's model can't explain the modern sex equality cases, or, for that matter, much of modern First Amendment jurisprudence, including the commercial speech cases. . .

. . . Ed may not have much of a problem with that. His view may be that Adarand and Loving v. Virginia are wrong, and so too are all the modern sex equality cases, the commercial speech cases and most of contemporary first amendment doctrine. His view may be that all of this should be left to the political process. If so, that's fine, but I'd like to hear it from him.

Heh. Balkin knows Whelan would NEVER say Adarand was wrongly decided (Loving I am not sure about.) What is Balkin cleverly exposing here? That so-called originalists are Legal Realists like everyone else. I wrote a lot on this subject in the past. Here is one where I discuss Tribe's dissection of Alito as a Legal Realist:

Professor Laurence Tribe has a very good Op-Ed piece on Judge Samuel Alito's opinion in the Third Circuit FMLA case, Chittister and his dissent in Casey. Tribe gets to the nub of what this case may tell us about Alito's judicial "philosophy":
My concern here isn't that Alito miscalculated the trajectory of the Supreme Court's evolving ''undue burden" standard for abortion restrictions, or even that he may inadvertently have revealed a readiness to overrule or severely limit Roe if given the opportunity -- something I suspect senators will spend much time pressing him, no doubt unsuccessfully, to confess or to deny.

I do wonder, though, about the window through which Alito was gazing at the social world in which the controversy arose. Was he perhaps viewing the ''burden" on married women in this situation as simply their due, as something that goes with the territory when a woman weds and thus, almost by definition, as no ''undue" burden? That would accord with Alito's opinions finding it only natural to permit a husband, but not a fiancee, to contest a woman's deportation to a jurisdiction threatening coerced abortion of the couple's unborn child. And didn't the distinctive burdens women face in juggling work and family likewise recede for the judge into something like a natural background he deemed Congress powerless to treat as legal inequality?

Alito seems as decent and fair-minded as he is bright, and I don't doubt his sincerity in separating the results he might like to see from those he concludes the law requires. I simply make a plea to quit pretending that law, life, and an individual's unarticulated assumptions about both can be entirely separated when assessing what someone's addition to the Supreme Court would mean for all of us well into the 21st century.

Tribe echoes the main theme of Legal Realism, which holds that the idea of judges neutrally reading text is a sham:

Legal realism holds that judges do more than apply law; they make law, and in fact, have vast amounts of discretion. Only by studying judicial action, or consequences, can the legal system be seen as anything more than a set of rules on paper. The most distinctive legal realist was Justice Oliver Wendell Holmes, widely regarded as the wisest lawyer in American history. . . . He denied that the law followed any sense of mechanical logic . . . A contemporary of Holmes was the Harvard jurist, Roscoe Pound, widely regarded as the founder of American sociological jurisprudence. His is known mainly for his attacks on mechanical jurisprudence, and his insistence that the law ought to be made responsive to the practical needs of society. Any changes in society necessitate change in law. The law must be stable, but it must also not stand still. . . . If the law is to survive, it must adapt to its environment. Legal reform is as old as history; as long as civilization keeps moving, the law must move with it. . . . Other legal realists included Karl Llewellyn, Herman Oliphant, Felix Cohen, Underhill Moore, Hessel Yntema, Jerome Frank, and Justice Benjamin Cardozo. All had different things to say or prove, such as Karl Llewellyn, who showed how precedent could be used to justify a judicial decision either way, or Jerome Frank, who argued that courts do not actually consider facts, only selective information far removed from original events. Hence, the uncertainty, unreliability, and adversarial stress of the fact-finding mission proved that there was no way to attribute logic or predictability to judicial decision-making.
It is through this prism that it is necessary to judge Alito, as it was with Roberts. The Senate failed in this task with Roberts. Will it do so with Alito as well?

Balkin is well aware of this problem for conservative originalists and presses his point:

It will help me understand where we [he and Whelan] actually agree and disagree. If he thinks that these cases are still correctly decided, I'll need to hear a bit more about the history he is relying on. My investigations in these areas, particularly in the areas of the Fourteenth and First Amendments, suggest that he has some explaining to do. Ed's larger point, I take it, is that if we want to apply our present day notions of equality and freedom of expression, we can enact our values through the democratic political process. . . . The problem is that if you adopt Ed's model of original meaning originalism the federal government doesn't have the power to pass much of this legislation. Under Ed's version of original meaning it's not clear why the New Deal cases like Darby and Wickard are correctly decided, and it's certainly not clear why the Civil Rights Act of 1964 was constitutional. If Ed has views on this, I'd love to hear them but I have to say that I'm pretty skeptical. Originalism of the kind he seems to be contending for, it seems to me, would mean that the federal government would not have had the power to dismantle much of the edifice of Jim Crow in the South, not to mention the power to pass laws protecting women or the disabled from discrimination. His version of originalism would generate a federal government that could not enact today's values.

Call it the Constitution in Exile problem. Balkin continues:

If I am skeptical about this, so too is the Justice Ed clerked for, Antonin Scalia. To his credit, Justice Scalia has admitted forthrightly that he is only a "faint-hearted" originalist because he accepts the New Deal settlement, and, one presumes, the constitutionality of the 1964 Civil Rights Act. If Ed is also a "faint hearted" originalist, I'd like to know that as well. It will help me understand where he is coming from and where we actually agree and disagree. As I pointed out in my original article, if you are a faint hearted originalist of the Scalian sort, you have to continually leaven your respect for originalism with all sorts of non-originalist precedents (non-originalist, that is, from the perspective of Scalia's theory, not mine). In fact, the number of these precedents just gets larger and larger over time. And then you come to the embarrassing question of why you want to keep some non-originalist precedents around and even extend them, and not others that you would be happy to overrule. Why go on and on about Lawrence v. Texas if you are going to extend the commercial speech cases, for example? Why make such a fuss about Griswold and Roe if you are going to keep Loving v. Virginia and Adarand? Why fulminate about the Violence Against Women Act if you are going to keep the Fair Labor Standards Act and the Civil Rights Act, and-- dare I say it-- the powers of the modern Presidency? It is very hard to escape the conclusion that the "faint-hearted originalist's" judgments of what to keep and what to discard are being subtly-- and sometimes not so subtly-- influenced not by the values of the adopting generation, but the values of the "faint-hearted originalist" judge.

(Emphasis supplied.) Indeed, what Balkin is saying is we are all Legal Realists. Balkin adds some sweet snark:

One thing you can say about my text and principle approach is that you don't have to engage in these shenanigans. You don't have to keep telling everyone what a very committed originalist you are while you conveniently disregard your announced methodology with respect to most of the existing case law.

And then finishes with a great logical flourish:

In my view originalism is a framework that rules some interpretations out of bounds, but does not do most of the work of deciding specific cases. It leaves a great deal to be filled in by judges doing what judges normally do-- reasoning from the traditional modalities of legal argument. . . . Ed's version of originalism, by contrast, tries to do too much. That's why his method produces all the problems I have mentioned. My fear is that if Ed's method is the right one, then nobody who serves on the federal bench-- Justices Thomas and Scalia included-- can be a consistent originalist today, in which case it is very difficult to know what the debate is all about. By contrast, I am trying to give an account of originalism that is both faithful to the Constitution and that not only judges, but also ordinary citizens, can use.

(Emphasis supplied.) Balkin knows what is going on here. He knows that the buzz phrases like "strict constructionist" and "originalist" are merely political tools to popularize the conservative value judgment of today. But he demolishes their views with such style and intelligence that it really is a joy to read. All hail Prof Balkin's Progressive Priginalism.

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    How about Breyer? (none / 0) (#1)
    by jr on Thu Aug 16, 2007 at 09:45:23 PM EST
    Have you had a chance to read Justice Breyer's "Active Liberty" yet?  He seems to be arguing for following a variant of originalism, based on the idea that the Constitution was designed for the purpose of encouraging greater civic participation and a more democratically oriented state.  It's an interesting read so far (I only got my copy right before YearlyKos, and just got around to starting it a few days ago).  I'd be really interested to get your take on it if you ever get to reading it.

    Haven;t read it (none / 0) (#4)
    by Big Tent Democrat on Thu Aug 16, 2007 at 10:41:31 PM EST
    I am in love with Balkin's theory of orignalism though.

    I should read it, I guess (none / 0) (#7)
    by coigue on Thu Aug 16, 2007 at 11:19:05 PM EST
    but when conservatives say originalism, it should be clear to anyone who has had high-school history that they are only talking about a portion of the founders.

    Above my grade level, mostly (none / 0) (#2)
    by andgarden on Thu Aug 16, 2007 at 09:51:36 PM EST
    but I love this:
    It is very hard to escape the conclusion that the "faint-hearted originalist's" judgments of what to keep and what to discard are being subtly-- and sometimes not so subtly-- influenced not by the values of the adopting generation, but the values of the "faint-hearted originalist" judge.

    I've never heard the word "orthogonal" (5.00 / 1) (#6)
    by coigue on Thu Aug 16, 2007 at 11:17:12 PM EST
    used in a sentence outside of advanced statistics. I have no clue what it may mean in this context.

    It means he thought "perpendicular"... (none / 0) (#8)
    by Dadler on Fri Aug 17, 2007 at 11:44:13 AM EST
    ...was far too easy.

    wow (none / 0) (#9)
    by coigue on Mon Aug 20, 2007 at 07:39:16 PM EST
    spatial psychology.



    Oh he'd throw out Loving (none / 0) (#3)
    by Maryb2004 on Thu Aug 16, 2007 at 10:15:15 PM EST
    but you're right - never Adarand.  

    And they'll never throw out the powers of the modern presidency.

    Thanks for the summary.

    I wonder how "Ed" and Scalia (none / 0) (#5)
    by coigue on Thu Aug 16, 2007 at 11:15:52 PM EST
    view the judicial activism on behalf of the corporations shortly after the turn of the century...all those decisions that made corporations into 'persons'?