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Balkin on Originalism:
Larry Solum recommends Jack Balkin's new article Abortion and Original Meaning. Although I must resist the temptation to read it until next week, on the basis of its abstract and Jack's blogging I recommend it as well. There is a reason my first article defending originalism, and the chapter on originalism in Restoring the Lost Constitution, is entitled: "An Originalism for Nonoriginalists." Here is the abstract.
This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse original meaning with original expected application.

Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of text and principle. This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.

The article applies this method to the most contentious constitutional issue of our generation-- the constitutional right to abortion. It concludes, contrary to conventional wisdom, that the constitutional right to abortion is consistent with the original meaning of the Fourteenth Amendment, and, in particular, its prohibition on class legislation that is embodied in the Equal Protection Clause.

The article criticizes Roe v. Wade's original trimester system, arguing that there are actually two rights to abortion instead of one. Finally, it explains how courts might have better implemented the constitutional guarantee of the two rights to abortion in ways that are more respectful of democratic politics.
As Larry likes to says "download it while it's hot."

I am opening comments for those who read the paper and want to discuss it.

(Civil comments only please)

Update: Jack blogs about his new paper here. You can post your comments on his blog where he can read them.

Joel B. (mail):
The principle outlined in the paper is actually quite interesting, that we should look to the original expected application, as opposed to just the original meaning. I can see that being a faithful and reasonable method of constitutional interpretation.

That being said, his extrapolation of such a method to abortion fails him. It appears he depends on the idea that by outlawing abortion the State is coercing the woman to become a mother against her wishes, or to become a mother with all the attendant duties without her permission. Then he goes on to suggest, that really it forces the woman to choose whether or not to risk becoming a mother or give up sex. Which apparently is an unacceptable choice. He doesn't really explain why this choice is unfair or unacceptable, it does seem like this leads to an extremely strong argument for paternal "support" abortions. After all, right now, the man has to either give up sex or risk becoming a father with all the financial and emotional trapping of such a choice. One also wonders if equal protection should now prohibit a single-sex draft, perhaps it does, and that was not the point of Balkin's paper, so he rightfully does not address it, but I do wonder.

Balkin does concede that his entire analysis falls apart if it is determined that the unborn child is a "constitutional person." He goes on to cite historical precedent and constitutional understanding of what makes someone a person. Interestingly however, he moves away from his original expected interpretation, to an originalist interpretation, glossing over the fact that it seemed as though the constitution and legislatures had in fact been expanding the rights of the unborn through to the 20th century, protecting them earlier and earlier. This seems to suggest that the constitutional definition of a person is locked in, while his constitutional equal protection can change. But that seems silly, ultimately, it must be that the legislature or congress can determine if someone obtains personhood, and even Balkin concedes that after quickening a killing the unborn was a felony. Now, he shows how exceptions were made rape incest, and says this means they are not persons, but I suppose one could say that because vehicular manslaughter is not as harshly punished as murder 1, that the person who dies in a car accident is less a person than one who is murdered. Surely we know this isn't true. The attendent circumstances do make a difference in how we treat actions.

I'll close this comment for now. Hope it reads civilly.
8.24.2006 2:14pm
Sebastian Holsclaw (mail):
I have read the theory portion of the paper, but not the abortion application portion (so if my impression is corrected there I apologize).

This paper is interesting in its attempts to avoid the modernist critiques of originalism (that its rigidity quickly makes the Constitution unable to deal with modern realities) while also avoiding the critiques of living Constitutionalism (that its free-form analysis can justify almost any decision).

I'm not completely happy with his meaning and principle/application dichotomy. It works well for unforseen applications (e.g. if the police invent a technology that can see into your house without knocking or physically entering, it would still be a search). But for applications that were common at the time of ratification, the commonly understood application surely has great relevance to the actual meaning and principles.

His example of women is instructive, but in opposition to the way he actually uses it. Despite the existence of the Privileges and Immunities Clause and the Due Process Clause, the Nineteenth Amendment was still appropriate to secure women's suffrage.
8.24.2006 2:20pm
Andrew Janssen (mail):
To Joel B.:

I think you're badly misinterpreting Mr. Balkin's position, by 180 degrees. My understanding of his paper is that he argues that true originalism should look to the original meaning of the text, and not, as Justice Scalia would argue, to the original expected application.
8.24.2006 3:06pm
Chris24601 (mail):
I like a lot of Balkin's piece: clearly we should replace substantive due process doctrine with a reliance on the privileges or immunities clauses, and Balkin relies on Harrison's important work on the original meaning of that clause. I don't think he pushes, as Harrison does, the equal protection clause as a substantive entitlement to protection, but there's a lot of good stuff here. My article on originalism and the sense-reference distinction, now at 50 St. Louis U. L.J. 555, makes a lot of kindred points.

The weakest part of Balkin's argument is the rejection at 48-53 of the protection of the unborn child as a sufficient interest for imposing special duties on pregnant women. It's largely a rehash of the arguments from Roe itself, and he seems to be relying on the original applications of the Fourteenth Amendment, rather than the original meaning (I would prefer, Fregean sense or Carnapian intension) attached to the term "person." We have a duty as interpreters to discover the actual reference-yielding facts, not to rely on the Framers' assessments (based on 1868 biology!) of who was and wasn't a person.

At 51: "But there is no evidence that the framers or adopters of the Fourteenth Amendment sought to enact a principle that would alter common law views about the unborn." Maybe so, just like on abortion--but Balkin thinks that's not dispositive; it shouldn't be dispostive here.

At 50: "But the fertilized ovum is not yet an individual." Why's that? The following text talks Roe-style about constitutional "person" clauses that don't apply to the unborn. But what's that got to do with individuality? The embryo is biologically self-organizing, so it's an individual, right?

At 52: "If the unborn are persons, states probably would not be able to refuse to impose the same penalties for abortion that they do for premeditated murder." Compare Roe's footnote 54. That's not plausible, is it? Even if they're not ultimately successful in showing a right to evict the fetus, Thomsonian/McDonagh violinist arguments at least show why there's a distinction here--person-within-a-person situations are different from situations involving a person not within another person. Abortion can be performed merely the eviction of the fetus, and the death of the fetus merely an unintended, genuinely regretted, side effect. Even if such eviction is desperately wrong, and should be punished, it isn't necessarily exactly the same thing as intentional murder.

Footnote 116 ignores the state-action requirement of the due process clause.
8.24.2006 3:10pm
Joel B. (mail):
Andrew,

I think in my comment, my mind crossed the names Balkin was using (largely because I conflated original meaning of the text to largely similar to what I think of as originalism), my comment I think still interprets Balkin's piece fairly if you change my crossing of the names Balkin is using.
8.24.2006 3:24pm
Marcus1 (mail) (www):
Yes, Andrew Janssen is right.

What I'm not sure, though, is to what extent meaning doesn't necessarily include expected application. If you entirely remove expected application, doesn't that make the "meaning" potentially extremely broad, with just a little lawyerly slicing and dicing? I wonder how originalists are going to respond: are they going to embrace original application, or are they going to slip back to an originalism that doesn't really mean anything?

Balkin argues that various principles have to constrain constitutional meaning so that this loss of meaning doesn't occur. It seems one of those major principles, however, would actually be the expected application (or in other words, the original intent). Personally, I think I'd be happy to say that original application (original intent) should be one of various interpretive principles, but shouldn't be controlling.

In any case, I think the important point is that originalism and living constitutionalism are entirely compatible, because both, at some point, have to be true. That's probably also why both groups have been so comfortable talking down to each other, and directly past each other.
8.24.2006 3:29pm
Marcus1 (mail) (www):
(Just to clarify, I cross-posted that with Joel B's correction.)
8.24.2006 3:32pm
TO (mail):
Justice Scalia makes clear in his book, A Matter of Interpretation, that he believes in applying the original meaning of the text, rather than the original expected application. I'm a bit confused by Andrew Janssen's comment, but I'll look over Balkin's paper again.
8.24.2006 3:55pm
Houston Lawyer:
Words have no independent meaning out of the context in which they are used. The author apparently believes that if we understand a word differently now than people did when a constitutional provision was originally adopted, that we should just use the current understanding of the word. That is just a license to do whatever you want and call it required by the constitution.
8.24.2006 3:59pm
James Lindgren (mail):
Where the framers obviously meant to enact principles, such as "due process," Balkin's approach may usually work well, both theoretically and practically. Where more concrete language was used, the justification for his approach may not work quite as well, though it may not be needed as much either.

BTW, when the framers thought about future change, they usually left it out of the constitution, deciding to put in mostly what was timeless. Interestingly, they almost always looked to Congress (not the courts) as the vehicle for accommodating social change.

Abortion may be a difficult application of Balkin's approach in any event, though he should be commended for taking on one of the hardest tasks. (Disclosure: I have worked for NOW on abortion rights cases.)

Joel B. wrote above:

It appears [Balkin] depends on the idea that by outlawing abortion the State is coercing the woman to become a mother against her wishes, or to become a mother with all the attendant duties without her permission. Then he goes on to suggest, that really it forces the woman to choose whether or not to risk becoming a mother or give up sex.

Balkin argues that criminalizing abortion "imposes special obligations on women to surrender their bodies to bear children," an equality claim, and "denies them the liberty to choose whether or not to become mothers," a liberty claim (p. 36).

In the 1970s, there was a discussion in print (by Ronald Dworkin perhaps) that pointed out that the interest of the fetus was usually one that was created by the mother choosing to run the risk of pregnancy. (Of course, fathers also choose to run the risk of impregnating, but their rights to mandate or restrict abortion are rightly mostly disregarded.)

Where the mother did not choose to run that risk (chiefly rape and incest), then the mother should not be forced to consider the interests of an entity that was forced on her. But in the more typical case, even if the fetus's interests (as a potential person, rather than an actual one) should be valued less than the mother's, it is morally relevant that the mother's actions had helped to create the very interest that she now sought to override.

Also interesting for this line of argument might be John Hart Ely's early comments about Roe in the Yale Law Journal:


In his famous Carolene Products footnote, Justice Stone suggested that the interests to which the Court can responsibly give extraordinary constitutional protection include not only those expressed in the Constitution but also those that are unlikely to receive adequate consideration in the political process, specifically the interests of "discrete and insular minorities" unable to form effective political alliances. . . . My repeated efforts to convince my students that sex should be treated as a "suspect classification" have convinced me it is no easy matter to state such considerations in a "principled" way. . . .

It is at least arguable that, constitutional directive or not, the Court should throw its weight on the side of a minority demanding in court more than it was able to achieve politically. But even assuming this suggestion can be given principled content, it was clearly intended and should be reserved for those interests which, as compared with the interests to which they have been subordinated, constitute minorities unusually incapable of protecting themselves. Compared with men, women may constitute such a "minority"; compared with the unborn, they do not.

Both of these arguments should probably be dealt with in the Balkin piece: (1) the responsibility of the mother in creating the interest that is now involved in denying her liberty, and (2) a comparison of women's power, not just with men's, but with the fetus's. The latter concern can probably be fairly easily dealt with, since the fetus is not a person under the law, but IMO it should be at least briefly addressed. The first concern is more fundamental to Balkin's argument and may take more space to handle fairly.

From a quick read of most of Balkin's article, I think it makes a major contribution both to discussions of originalism and to discussions of abortion (his discussion of two rights of abortion is particularly insightful). It would be good if those of us who strongly support a very broad right of a woman to choose whether to have an abortion could come up with more morally and legally sound arguments for these rights. Balkin's effort has considerable merit along this line.
8.24.2006 3:59pm
tbaugh (mail):
"It would be good if those of us who strongly support a very broad right of a woman to choose whether to have an abortion could come up with more morally and legally sound arguments for these rights." True, or, if Roe ever isn't the law, arguments on behalf of this view could be presented to the various state legislatures (as could contrary arguments).
8.24.2006 4:24pm
Marcus1 (mail) (www):
Jim Lindgren,

>Where the framers obviously meant to enact principles, such as "due process," Balkin's approach may usually work well, both theoretically and practically. Where more concrete language was used, the justification for his approach may not work quite as well, though it may not be needed as much either.<

Balkin does note this, you may have seen. I think it's perfectly consistent, though: in some cases, the original meaning is broad, and in other cases, the original meaning is narrow. That's fine; Balkin says follow the original meaning in both instances. Just don't pretend the meaning is narrow when it's actually broad by going beyond the meaning and into expected applications.
8.24.2006 5:45pm
SimonD (www):
Sebastian Holsclaw wrote...
This paper is interesting in its attempts to avoid the modernist critiques of originalism (that its rigidity quickly makes the Constitution unable to deal with modern realities)
It seems to me that it is usually the case that those who offer the above-quoted criticism of originalism actually mean that originalism's rigidity makes the Constitution unable to give the answers which they want to modern questions. Critics such as Balkin seem to regard it as a strike against originalism that rigid adherence to the original meaning "would 'expel from the domain of legal issues . . . most of the constitutional disputes that capture our attention', as Scalia put it in Law &Language. Why that should be regarded as a vice rather than a virtue is bewildering. There is a difference between failing to resolve a question and failing to resolve it to a given person's satisfaction; originalism does provide an answer on the question of abortion -- that the question is left to the states as they see fit -- it is that originalism does not provide what critics regard as the correct answer that is its flaw.
8.24.2006 5:56pm
SimonD (www):
Andrew Janssen wrote:
My understanding of [Balkin's] paper is that he argues that true originalism should look to the original meaning of the text, and not, as Justice Scalia would argue, to the original expected application.
That Justice Scalia would look to the original expected application is asserted by Balkin, but that does not mean that Justice Scalia - or any other originalist - would look to the original expected application. It is certainly true that many originalists look at how the Constitution operated in the early years of the Republic, just as we look to the Federalist papers and just as we look to the context in which the Constitution was framed. I think Balkin essentially misunderstands (or misrepresents) the purpose for which we look at such materials: we do not look at them because they have independent or freestanding authority, we look to them for what they can tell us about what is authoritative: the original meaning. This idea that Balkin has blogged about - and now apparently embedded in his article - is at best a false dilemma and at worst a complete fabrication, something that will come as no surprise to anyone who read his missive in Slate last year.
8.24.2006 6:37pm
Seth Edenbaum (mail) (www):
As a bit of related news, the FDA has just approved Plan B
8.24.2006 6:57pm
Nathan Wagner:
Three observations and a question:

(1) One rather suspects that Balkin's reading of the constitutional guarantees of the equality of women's liberty interest in citizenship requires the systematic elimination of biological differences wherever they impose disparate demands on the sexes - a notion of equality that, taken to its logical conclusions, would constitutionally mandate a vast government apparatus to make all the necessary compensations. I am doubtful about the wisdom and cost of such a project - as well its chances of success.

(2) Outside his reading of women's liberty interest in the equality of citizenship, Balkin is only able to reconcile originalism with fundamental rights to abortion because he wishes to place them under the Privileges or Immunities clause that Slaughterhouse effectively read out of the Constitution. Balkin regards Court's jurisprudence under the equal protection and due process clauses as fundamentally distorted. He all but acknowledges that the original meaning of those clauses will not support the superstructure that has been built on them during the last hundred years. Given that near-acknowledgment, his conclusions with regard to abortion hang entirely on the Privileges or Immunities clause. But the reading he adopts of the power of the Court to declare rights under that clause is so expansive as to be virtually indistinguishable from living Constitutionalism. The difference, in effect, is that living constitutionalism says that the text may have had an original meaning, but we are free to alter that meaning in whatever way suits our perception of present need - whereas Balkin's orinalism says in effect that although we are bound to abide by original meaning, the original meaning of the Privileges or Immunities clause gives us a permanent blank cheque to do whatever we want.

(3) Balkin's limits on the Court's power to declare rights under the Privileges and Immunities clause are nearly meaningless. He acknowleges that, were Roe and Casey overturned today, as many as twelve states would likely pass very restrictive laws. Yet he contends that, were the Court in 1973 to have adopted his framework for asserting fundamental rights to abortion, the greater number of states that then might have passed very restrictive laws could reasonably have been declared outside the national consensus. It becomes evident that Balkin's reading of the content of the Privileges and Immunities clause as alterable by national consensus would, his protestations to the contrary notwithstanding, mean in practice that the Court could, after a suitably fudged finding of consensus, declare whatever it wished to be a fundamental right.

There are only two real ways to give alterable substance to the guarantees of the Privileges or Immunities clause. Either one could rely on a real national consensus - far broader than Balkin would be willing to countenance since he does not like a twelve state veto - or one could invest a body with the power to declare what these Privileges and Immunities entail. Interestingly, it appears that Representative Bingham, whom Balkin quotes, might have thought the amendment created the later solution. He said, quoting from Balkin's footnote 87:

[The] Fourteenth Amendment gives the federal government the "to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State" [my italics].

Bingham, in other words, thought it was the prerogative of Congress to give substance to the Privileges or Immunites clause.

That makes a great deal of sense in context, because the Court at the time certainly was not going to do it, and the federal government had the power, through the troops it kept in the South, to impose its conclusions.

It seems to me that, if one wants to reactivate the Privileges or Immunities clause, and if one does not want to limit its application to cases where robust national consensus has been acheived - a consensus that could plausibly be reversed - then the clause ought only be given specific meaning by an act of Congress.

Does anyone know if there has been any originalist work done on the Privileges and Immunities clause that considers its specific content determinable by Act of Congress rather than judicial finding?
8.24.2006 8:08pm
SimonD (www):
It becomes evident that Balkin's reading of the content of the Privileges and Immunities clause as alterable by national consensus would, his protestations to the contrary notwithstanding, mean in practice that the Court could, after a suitably fudged finding of consensus, declare whatever it wished to be a fundamental right.
See, e.g., Roper v. Simmons, where the court found, "on the flimsiest of grounds, that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists."

There are only two real ways to give alterable substance to the guarantees of the Privileges or Immunities clause. Either one could rely on a real national consensus - far broader than Balkin would be willing to countenance since he does not like a twelve state veto - or one could invest a body with the power to declare what these Privileges and Immunities entail
My own view of the matter is that the Priveleges or Immunities clause incorporated the bill of rights. That is, by virtue of the 14th Amendment, the states may not abridge the priveleges and immunities guaranteed to citizens against the Federal government. Of course, this is not the direction the court has taken, preferring to rest incorporation on substantive due process, something that I agree with you - and apparently with Balkin - is utterly unsupportable by either the original or contemporary plain meaning of the due process clause.
8.24.2006 8:44pm
Mark Field (mail):

"[The] Fourteenth Amendment gives the federal government the "to protect by national law ...[my italics].


Bingham, in other words, thought it was the prerogative of Congress to give substance to the Privileges or Immunites clause.


I'm not sure your conclusion is wrong, especially in light of Sec. 5 of the 14A, but I don't think the quoted language demonstrates it. The term "national law" surely would have been understood to include court decisions as well as statutes.
8.24.2006 9:05pm
ReaderY:
I have a very simple test. Could the Supreme Court declare a right to own a slave a fundamental right under the 14th Amendment by applying the proposed set of principles? If so I think we have a problem. After all the 13th does have a text.
8.24.2006 11:12pm
Nathan Wagner:
I looked up Balkin's citation of Bingham's speech introducing the 14th amendment to Congress. Balkin certainly plays a bit loose with it by excluding opening portion of the sentence he quotes. Here is the quote in context and the sentence in full:

The necessity for the first section of this amendment to the Constitution, Mr. Speaker, is one of the lessons that have been taught to your committee and taught to all the people of this country by the history of hte last four years of terrible conflict - history in which God is, and in which He teaches the profoundest lessons to men and nations. There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply. What is that? It is the power of the people, the whole people of the United States, by express authorization of the Constitution to do that by congressional enactment that which hitherto they have not had the power to do; that is, to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be denied or abridged by the unconstitutional acts of any State.

It is evident here that what Bingham contemplates is Congressional enforcement by statute, not judicial enforcement by declaration. His reference is specifically to the first section of the 14th, not to the fifth section. In fact, Bingham goes on to explicate the need for each of the sections individually.
8.25.2006 1:07am
Medis:
I also commend Balkin for diving right into abortion. Interestingly, I think people are making some plausible arguments about how he may have misapplied his own theory to some abortion-related issues, but that suggests to me his general project is sound, at least in the sense that his framework may help us discuss these issues in a new and more productive fashion.
8.25.2006 8:21am
Chris 24601 (mail):
Nathan Wagner,

You should take a look at Michael McConnell's piece on Brown, which explains at one point why the Fourteenth Amendment has to be both judicially and congressionally enforceable.
8.25.2006 12:04pm
Andy Freeman (mail):
Is it poor form to point out that rights explicitly protected in the constitution don't get nearly the deference shown to abortion?

Although, I suppose that if I overlay my political screed against a candidate within 60 days of an election on a a picture of a breast that it might be protected.

I'm pro-abortion, but comparing the shennanigans around the 1st and 2nd with abortion pretty much proves that constitutional analysis is basically a con.
8.25.2006 1:08pm
Jeremy Pierce (mail) (www):
Maybe I'm completely wrong on this, and I wouldn't mind being corrected if I am, but one irony of this seems to me to be that Balkin's argument against the Scalia-Thomas-Rehnquist view of affirmative action doesn't follow anymore from this new form of originalism that Balkin has identified. I've argued that it doesn't as clearly apply anyway to Justice Thomas' original intent view, but I don't see how Balkin's criticism of Scalia on affirmative action will apply at all to Balkin's own new view.

His argument against the Scalia-Thomas-Rehnquist view of affirmative action is that the original application of equal protection does not include things like what affirmative action now is. But of course that's irrelevant if original application isn't what determines the meaning of constitutional language. What matters is original meaning, and if original application doesn't determine original meaning, then his argument against the original meaning allowing colorblindness just misses the point. So doesn't this new originalism open the door toward seeing affirmative action as unconstitutional, even in the face of Balkin's argument against that sort of view?
8.26.2006 11:11pm
Jeremy Pierce (mail) (www):
One further question, and maybe it betrays my not looking at the paper carefully enough, but since it's a question and not a comment, I figured I'd ask those who did read the paper:

How does this differ from the kind of thing then-Judge Alito was saying at his confirmation hearings? It struck me that he was perfectly willing to think of the Constitution as living in the sense that how it is applied changes in different contexts, and thus original application is irrelevant to interpretation, but then he went on to say that the original meaning is what gets applied in new contexts. So isn't this Justice Alito's view?
8.26.2006 11:13pm
Jon Rowe (mail) (www):
Hey Jeremy,

Like your music links.

Check out my latest post.

(Sorry if this is OT.)
8.27.2006 2:29pm