I am glad to report that Jack Balkin has posted an extended response to my new article on Resolution VI. His doing so allows me to both clarify my arguments and our points of disagreement. Jack’s scholarship on constitutional theory and history is deep and profound, and Jack himself is a warm and gregarious colleague. Both of these points are obvious to anyone familiar with Jack and his work, but given the criticisms in my article, I should acknowledge both facts up front. My claim in this article is nothing more than, on this particular point, Jack and others have erred in regard to their claims about Resolution VI.
It is important to clarify these claims because Jack seems to misapprehend my arguments. They are directed solely at historical claims made by proponents of a Resolution VI-based reading of Article I, Section 8. These are claims of original intent and historical fact. The relevance of any historical evidence depends on one’s theory of interpretation. This article has no quarrel with Jack’s or anyone else’s particular theory of interpretation and construction. My quarrel, if you want to think of it that way, is with the factual claims relied upon by Jack and others in building their case. For those first joining the discussion, my general argument is presented here, here, here, and here.
Our Respective Claims
First, Balkin claims that I have mischaracterized his position about Resolution VI. Balkin does in fact have a creative theory of constitutional meaning and construction, one that I do not address in my article or in my posts. It may well be (though I am not convinced) that the evidence presented in my article makes no difference to his particular theory of Article I, Section 8. However, in the course of [...]