On his new blog, Tutissima Cassis (How do people think of these names?), Nathan Oman takes on Jack Balkin’s accusation that conservatives are closet activists.
Balkin sums up his argument by claiming, “The fact is, we are all living constitutionalists now; but only some of us are honest about it.” This, unfortunately, is not exactly true. Or at least, it is not really complete. We could just as easily say, “We are all originalists now.” When conservative justices write aggressive federalism decisions, lots of liberals like Balkin get red in the face, pound their fists on the table, and say “Damn it! That is not what the Eleventh Amendment was supposed to mean!” It is also true that when a liberal justice issues an opinion pulling a right to contraception out of the constitution, he doesn’t say “I have invented a new constitutional right! Look what an honest ‘living constitutionalist’ I am.” No. He gives us a song-and-dance about penumbras and the basic concepts of liberty enshrined in our founding document, et cetera, et cetera. So it is neither true that only one side of the debate is honest about what it is doing, nor is it true that we are all really living constitutionalists.
All right, I have exercised far too much restraint here. Assume for the sake of this argument (a) we are talking about today’s conservatives and liberals and (b) judicial activism (as I defined it below) consists of “judicial decisions that conflict with the Constitution, either because they’re putting into the Constitution something that’s not there, or because they’re refusing to enforce what is there.” (Humor me here. I know it assumes a defensible method of interpretation–which I say more about at the end)
If forced by this debate to generalize, I contend, contra Jonah, that many liberals and many conservatives are judicial activists for entirely understandable reasons. Liberals advocate disregarding what the Constitution says when the text fails to comport with their conception of justice. So the Commerce Clause must be read to reach wholly intrastate economic activity (rather than the trade in goods between the states) because only by doing so will one establish justice, e.g., between employers and employees. By the same token, Conservatives advocate disregarding what the Constitution says when the text fails to comport their conception of the rule of law. So judges must ignore the Ninth Amendment and the Privileges or Immunities Clause because these provisions are insufficiently rule-like and too vague to be enforced without giving judges too much discretion. (Note that I approve of both justice and the rule of law.)
On the other hand, contra Nathan, it is possible to enforce the original meaning of the whole Constitution–the parts you like along with those you do not–though many parts of the Constitution are quite open ended and leave considerable discretion to constitutional interpreters. This is not an argument that you should so enforce the whole Constitution, only that it would be quite possible to do so. That liberals and conservatives do not do so, does not make it impossible. Rather, it suggests that both sides are unhappy with parts of the Constitution for different reasons–reasons they find sufficiently compelling to trump the text where it gets in the way. But it is possible to like the original meaning of whole Constitution in which case enforcing all of it would not only be possible, it would be a virtue.
But does this mean that one is an originalist solely because one likes the results such originalism reaches. While results are important, they are not all that matters. A written constitution can be viewed as a structural feature of this particular Constitution, as are separation of powers and federalism, that serves particular purposes. The most important of these is that we need a written constitution to subject to law those who rule us. And if the very rulers who are supposed to be bound to the Constitution are able to disregard, on their own authority, portions of it when it conflicts with their conceptions of justice or the rule of law, this structural feature of the US Constitution will be lost. To prevent this, the meaning of the Constitution must remain the same until properly changed. (I defend this claim at length in Chapter 4 of Restoring the Lost Constitution.)
Which brings me to the following Larry Solumesque conclusion: Any method of interpretation that is flexible enough to allow judges to reach their favored result even when it conflicts with the text will lead to the downward spiral concerning judicial appointments. Because any justification for “activism” of this sort is very likely to be equally adaptable to the views of one’s political opponents, the only way to prevent results one finds abhorrent is to fight against your opponent’s judicial nominees to the death. Only a commitment to the (original meaning of the) whole Constitution stands any chance of avoiding this. Because the more open-ended provisions of the text still require constitutional construction to be applied to the facts of particular cases, even originalism will only reduce not eliminate such struggles. But that is both a cost and a virtue of the particular Constitution we have inherited. And it provides no excuse to disregard the constraints that are in the written Constitution.
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