Sandefur on Balkin:
On Positive Liberty, Tim Sandefur has a characteristically thoughtful response to Jack Balkin's Slate essay. Read the whole thing, but here is a taste:
The fact is, liberal talk of the “living” Constitution is not talk of a living Constitution at all, but talk of a dead Constitution—a Constitution whose clauses are to be manipulated, bent, stretched, or ignored outright so as to allow the regulatory welfare state to accomplish its aims. And if there are phrases like “herein granted” or “public use” (let alone “due process”) that must be ignored in the process, why then, that’s just fine. Is that living Constitutionalism? Or is it dead, null, and void Constitutionalism?At a recent program at the Heritage Foundation, I heard Ed Meese make the exact same terminological point about a "living" versus "dead" Constitution, and it appealed to me then. It still does.
Even under a paleo-Constitutional view, the Federal Reserve is perfectly safe. In point of fact, we had two Banks of the United States within the lifetimes of the Founding Fathers, and the charter of the first Bank was signed by none other than President Washington.
I have no idea whether the Founders would approve of the FCC or FTC, but I doubt that their objections would be based on the illegality of Federal institutions. Moreover, I'm a bit skeptical of claims from Balkin, given that he didn't get the Federal Reserve right.
The conservative vision of the Constitution isn't of a living one; like any artificial creation, it is nonliving. It is a *standing* constitution -- as in, "the Constitution still stands!" -- and an *enduring* constitution, but it does not breathe, eat, and crap out bad law the way the liberal living constitution does.
I agree with Medis that invoking "liberal" and "conservative" detracts from this conversation. For that matter, "originalism" as a stand-alone term may be unhelpful (as is evident from Balkin's blog-post). I'm not sure what would be a better substitute, though.
I was at a study session in my first year Constitutional Law class where a girl was listing off all of the substantive due process cases and what "fundamental rights" they protect. It looked like she almost swallowed her tongue saying "And Roe v. Wade guarantees the right to - a woman's right to choose." I thought about asking her "the right to choose what?" but I passed.
No... the fight over terminology is definitly not a "cause of the right." Phrasing the issue is half the battle. If we were the only ones to have figured that out, the left wouldn't exist anymore.
I'm inclined to say, though, that the term "living constitution" is itself an example of semantic manuvering. By citing the dichotomy as living versus dead, it makes the presupposition of an organic constitution as inevitable. My, admittedly limited, understanding of the debate is that originalism posits the constitution as a set of overriding principles subject to revision within the principles, but not fundamentally changing in nature over time. A fitting comparison would be if originalists termed the Constitution as enduring versus transient.
God Loves, Balkin Kills
Right now, this administration asserts that the President can "constitutionally" constitute kangaroo court tribunals, authorize torture and authorize indefinite detention without charge or trial. If you are not critizing whatever doctrine of constitutional interpretation supports that kind of total nonsense, you have no credibility as scholar or a citizen.
Or how about requiring public universities to treat all applying students equally, regardless of race? Whoops! Another case where conservatives argue for equal protection of the law, and liberals usually argue for unequal treatment.
Were military tribunals used to try enemy unlawful combatants during the Roosevelt Administration "kangaroo court tribunals"? Or are they only a bad idea when Republican Administrations use existing law and precedent?
Actually, to the extent that it really is semantics, I think it does add to the debate. However, most of it is really posturing, and THAT adds nothing.
"Living" vs "Dead" is really a rather poor analogy for modes of constitutional interpretation; that was also thrashed out on the prior Balkin-article-thread.
Regrettably, as long as the masses get their cable TV they are both indifferent and ignorant of what the constitution actually says, let alone care much about how its interpreted.
Most of us brought up since the 60's were taught that the government was omnipotent and could do no wrong.
The expansion of government powers has become so common place as to no longer arouse any concern from the populace.
1) On gun control - its hard to give a good 14th amendment argument to why concealed permits should be legalized for everyone (and, indeed, the easiest solution is to criminalize them for everyone)....and regardless, liberals do not blanketly, uniformly, or even primarily opposed licensed gun rights.
2) I think the original poster was looking for a conservative argument in favor of the original point of the 14th amendment - protecting underpriviliged minority rights, not overpriviliged majority rights. Without getting into the details of whether the Bakke line of cases were correctly decided, another example (or an argument against the premise) is needed to defend the right against the original poster's attack on conservative interpretation of the 14th amendment.
Regrettably, as long as the masses get their cable TV they are both indifferent and ignorant of what the constitution actually says, let alone care much about how its interpreted.
Most of us brought up since the 60's were taught that the government was omnipotent and could do no wrong.
The expansion of government powers has become so common place as to no longer arouse any concern from the populace."
I've had this debate with my conservative friends in law school, and this always strikes me as the sort of misassumption conservatives make.
If you really, really, really got to a dead consititution, one that was unprepared for the modern administrative state, one supported only limited minority rights against the majority, one that really hampered the president's ability to use force or contravene international law (ah, the things originalists would love to ignore), etc, etc, people wouldn't just fall in love with the liberterian, state-centered originalist government. They'd either demand a new constitution, or more likely, demand judges that allowed the government to give them the things that a modern society provides its population (ie, the political response to the four horsemen).
In other words, if originalists abandoned hypocracy and REALLY wanted a full-blown, no-precedent, originalist, dead constitution, and got their way, the Constitution would truly be dead...much like the first four Republics of France. A constitutional convention designed to provide a more modern constitution would be called on, with those in power crafting one that assigned them all the powers they want.
In other words, "originalists" that are not originalists solely to achieve a political/ideological agenda (i.e. Scalia, whose brilliant btw), should be careful what they wish for.
I'd start with a due process incorporation argument if I had to try...
"McConnell correctly points out that many of the people who voted for the Fourteenth Amendment also voted for the school desegregation language in the 1875 Act, hence he concludes that this is evidence of what they intended in 1868.
The problem with McConnell's argument is that he must concede, as he does in his 1995 study, that at the time of the ratification of the Fourteenth Amendment, "school desegregation was deeply unpopular among whites, in both North and South, and school segregation was very commonly practiced." Indeed, McConnell contends that the Fourteenth Amendment, along with the Fifteenth, is virtually unique among amendments in the sense that it contradicted contemporary popular opinion rather than being consistent with it. As a result, he argues that the views of the actual ratifiers of the Fourteenth Amendment in the states-- who largely opposed school desegregation-- should be disregarded to the extent that they contradict the views of those framers who voted for school desegregation in subsequent debates over the 1875 Civil Rights Act in Congress. To put it mildly, this is a very controversial view about the Amendment process. Given the importance that originalists usually put on the ratification debates in the states, McConnell's argument, which rejects the views of the actual ratifiers of the Amendment, and which is based on what was, at the end of the day, a piece of legislation that failed in Congress, is not particularly persuasive."
(back to my thoughts)
If McConnell's argument is contraversial amongst conservatives, it cannot represent in this instance the conservative case for Brown, only the McConnell case for Brown.
"Every time someone puts the word 'mere' in front of the word 'semantic,' I bite my tongue and remind myself that I, too, am greatly ignorant." The beauty of that quote is that anyone invoking it is _not_ biting their tongue, but instead calling the other person an ignoramus.
Which, Nobody is.
Nobody: if the debate is not over the words and meaning of the words - and, indeed, the words of the meaning, and the meaning of the words of the meaning, viz. Semantics, then I'm not sure what it is about.
The debate is abstract, vaporous. To attempt to chain it with words, fence it round with meaning is all we can do.
If Balkin does not advance the debate, say so. But don't say "semantics." Say "empty rhetoric" or "mere bombast." Don't misuse words that have, you know, actual meanings.
As I always do, I encourage everyone to swing by my blawg and see what I posted just recently on Scalia and his view of the Living Constitution. Because I am nothing if not topical and timely. :)
Flames are welcome there; they will be doused. Possibly with something flammable. Personal emails will be thoughtfully considered. Impersonal emails are presumably spam, and are thus ignored.
The protection of the Bill of Rights most often mentioned by proponents of the 14th Amendment during debate was...the right to keep and bear arms. The reason was simple: the Klan relied on state gun control laws to disarm freedmen, who were somewhat easier to intimidate when they weren't able to shoot back.
Even then, if you want to argue for a complete ban on issuance of concealed carry permits as a solution to the problem of equal protection being denied, fine, make that argument. But that's not what liberals argue for in places like California, where permits are available at the discretion of the sheriff or police chief--and are issued to liberals with long histories of violence, like Sean Penn.
I'm white. I grew up just below the poverty line. I wasn't able to finish my BA until I was 38, and my MA until I was 42. The vast majority of my tuition was paid for by me, and by private employers.
My wife is also white. She wasn't able to finish her BA until she was 34, and her MA until she was 37. The vast majority of her tuition was paid by me.
Overprivileged? Yeah, there might well be white people who are "overprivileged" but there's plenty of us for whom that really doesn't describe it.
Not every white person grew up rich, or even middle class, just like not every black person grew up in a ghetto. We are individuals; what may be true on the average for a race, or an ethnicity, or a gender, shouldn't be the basis for making decisions about individuals.
Why wouldn't it be okay for the Wickard Court to say "the AAA is justified by the principle of a free flow of commerce between states which would be unduly hampered if Congress couldn't do this?" Why wouldn't it be okay for the Griswold Court to say "the principle of personal autonomy and protection of the individual against unwarranted state intrusion" justifies its decision? The Constitution has a million and three "principles"; if that's all you need, in Sandefur's view, he's as living a constitutionalist as I've ever found.
Sandefur makes some excellent points, but undermines them all by his polemics. Apparently, only "liberals" offend him.
The first great decision of the court -- Marbury v. Madison -- and the one, which established the principle that the Courts can review the constitutionality of federal laws, thus making the whole discussion of how the Constitution is to be interpreted by the courts, operative, illustrates an important point about credibility and partisan interest. The decision of the court was in favor of Madison, the Democrat, and was delivered by Marshall, the Federalist.
The principle of judicial review is subject to the same kind of interpretative criticism frequently visited on the right of privacy. It is not explicitly spelled out in the Constitution's text; it is implied, perhaps, in the structure of the Constitution and in the legal history of the United States, but it is not in the text.
Marshall established the principle, in a case, arising out of a partisan dispute. He made his decision stick, by persuasive argument, and by accepting an outcome inconsistent with his immediate, partisan interests.
Sandefur could take a number of lessons from Marshall.
Again, those darn libs also support "due process" -- if anything they want to stretch it like silly putty. The debate is also on the meaning of "public use."
Like a contorist, living things can be manipulated and stretched, allegedly or not.
If this paragraph is the gravamen of the argument, it's a pretty shallow one.