Dispatches from the Creation Wars

Balkin vs Franck, Round One

There’s a fight brewing over the concept of liberal originalism as a legitimate mode of constitutional interpretation, a fight between Matthew Franck of Radford and Jack Balkin of Yale. Balkin, you may recall from previous posts on the subject, has undergone an interesting transformation over the last few years, from legal realist to originalist; like myself, Randy Barnett and others, however, he argues that originalism often leads to different results than those argued for by conservative originalists.

The first shot was fired by Franck at Douglas Kendall and James Ryan for an article in the New Republic discussing how liberals can “take back the court” by developing “an affirmative message of what the Constitution means” to counter conservative originalism. But since Balkin was cited by them, he came in for some criticism too.

Unfortunately, as Balkin pointed out, Franck’s criticism was entirely non-substantive. All he really does is give a haughty sniff in Balkin’s direction:

I don’t know what other conclusion to draw from an article that uses, as its prominent example of progressive originalism, the recent “conversion” of Yale law professor Jack Balkin to “fidelity to the original meaning of the Constitution,” proclaimed in the course of his arguing that the text and history of the Fourteenth Amendment support . . . the right to abortion.

The editors of TNR seem to have gotten the joke. They title the piece “Origin Myth.” Who was it who said that sincerity is so important a political quality that politicians must learn to fake it?

That was Franck’s entire argument. No analysis either of Balkin’s arguments concerning an originalist case for abortion rights (see here and here) or for his broader position on constitutional interpretation. Balkin rightly called him out for his entirely substanceless response:

Hey Matt, what’s so funny? There’s no fakery here. No insincerity either. Original meaning originalism just doesn’t have the consequences you think it does.

There’s now a bunch of folks who have studied the issues for some time– including, among others Randy Barnett (who is libertarian, not progressive), Akhil Amar and myself. We’ve been thinking about constitutional text structure and history a lot. We’re trying to be faithful to the Constitution. And guess what? We just disagree with you on reasoned grounds. We also disagree among ourselves about many different aspects of Constitutional law, including cases like Roe and Griswold and Lawrence. (For example, Akhil doesn’t think Roe is correct, but he does believe that the Fourteenth Amendment might make some older abortion laws unconstitutional, including the original Texas law in Roe itself.)

Here’s the point: we’re not just making things up, any more than you are. (You wouldn’t be twisting your readings of the Constitution to suit your politics, now would you? No, of course you wouldn’t. That would be insincere.)

Balkin urges Franck to actually read his articles on the subject and engage his arguments rather than just dismissing them with a sneer; seems a fair request. Unfortunately, Franck’s follow up is only marginally more substantive, and it’s announced with the sneering title I’m Still Laughing, Jack. First, though, he does point out that his worst sneering is reserved for Kendall and Ryan, not for Balkin:

First, I should say that my charge of “faking originalism” in wholly cynical fashion, just to don the appearance that (rightly) has the people’s prejudices on its side, was directed at Kendall and Ryan. Their TNR piece is bracingly candid about their preference for the arguments of the present Court’s most prominent non- or anti-originalist, Justice Stephen Breyer. Declaring themselves to be “rooting for” Breyer, Kendall and Ryan only lament that he has lost too many of the arguments to Justice Antonin Scalia in the court of public opinion. So they propose that the terms of debate should be changed. Liberals should claim to be originalists too! There is a “progressive originalism” out there, they say, whose “central theorist” is Balkin’s Yale colleague Akhil Amar. But Balkin gets a special mention too, for what Kendall and Ryan clearly regard as his very useful paper “Abortion and Original Meaning.”

I don’t think he does nearly enough to separate the serious legal scholarship of Amar and Balkin from the politics-level cheerleading of Kendall and Ryan. Kendall and Ryan may well be embracing this idea of a liberal version of originalism purely for partisan motives, but that doesn’t mean that Amar or Balkin (or me, for that matter, without any partisan commitments at all, or Sandefur, or Randy Barnett, or anyone else who takes a similar position) are not being either sincere or consistent.

But here, I think, is the key to Franck’s shallow rejection, the next two paragraphs. First, addressing Amar:

Now it happens that I reviewed Amar’s last big book on the Constitution for NR, and found much to admire in it. It is not, as Kendall and Ryan paraphrase someone as saying, the “best book written about the Constitution since The Federalist Papers”–not even close. But from what I have seen of Amar’s output, he shows little interest in generating the kinds of particular doctrinal results that will comfort ideologues of any stripe where today’s jurisprudential debates are concerned.

Okay, fair enough. Amar has done exceptional work in fleshing out the details of the intent and meaning of Constitutional provisions. His most recent book, the one Franck reviewed, may not be the best book on the Constitution since the Federalist Papers, but it belongs in the discussion. But Amar has not gotten terribly specific on how to apply those ideas, nor has he involved himself in commenting much on specific political issues or specific court rulings. Balkin has, however, and Franck obviously disagrees with him, especially on abortion:

Not so Jack Balkin. He urges me to read two of his pieces (here and here), and I confess I stopped after the first one–the one cited by Kendall and Ryan. Readers can plow through the 70 pages of “Abortion and Original Meaning” for themselves. My own view is that there is an astonishing results orientation to his arguments in this piece–an intensity of focus on an evidently desired outcome that is the antithesis of originalism, or indeed of constitutional jurisprudence properly understood (but I repeat myself). I do not question the “sincerity” of Balkin’s claim to be an originalist. But the price of his professed commitment to originalism is a redefinition of the term that would make Humpty Dumpty proud.

This suggests to me that it is Franck, not Balkin, who is focused on an evidently desired outcome. He makes no substantive argument against Balkin’s position on originalism and abortion at all; he merely asserts that any legal argument that justifies abortion being legal is “the antithesis of originalism, or indeed of constitutional jurisprudence properly understood” without any argument for that conclusion. He seems to think that the mere assertion of a position refutes any contrary argument.

He does try to refute the general argument for an originalism based on original principle rather than original expected application, but he does a rather poor job of it. After briefly surveying Balkin’s argument that the principle of equality embodied by the 14th amendment demands that abortion be made legal, Franck writes:

This argument is many things–creative, for one. But it is not originalism. Asserting that it is originalism requires Balkin to say that even though the framers of the amendment had no notion of protecting the equality of women–indeed, they assumed they left intact the common law of coverture for married women–their “principle” of “nonsubordination” has a life of its own, which we are free to understand as applying to women as a general matter, and to pregnant women in particular. And then we are free to demand that judges enact this new, improved understanding of a conveniently abstract “principle.”

This is a very bold statement. He isn’t merely arguing that the equal protection clause and the principles underlying it do not lead logically to upholding abortion rights (a much easier and more compelling argument to make), he’s arguing that it doesn’t apply to women at all. This is one of the primary problems with the idea of following the original expected application of a constitutional provision, and it’s an ironic one for anyone who claims to be a textualist.

Franck is confusing original expected application with the actual meaning of the text, and he’s confusing the immediate reason why a provision was written with the broad principle it actually entails. Yes, the immediate impetus for the 14th amendment was the Civil War and the inequality between blacks and whites. But the 14th amendment declares a broader principle. It does not specify only racial equality and protection of individual rights based on race alone, it declares the broad principle:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It says that no state shall enforce any law that abridges the rights of citizens, not blacks. It declares that no state shall deprive any person of life, liberty or property without due process, not any black person. It says that no state shall deny to any person the equal protection of the laws. And Franck, again, is not merely arguing that this does not justify making abortion constitutionally protected, he’s arguing that none of this applies to women at all because those who wrote the 14th amendment “had no notion of protecting the equality of women” when they wrote it.

Think about this for a moment. By his reasoning, the 14th amendment must apply only to racial issues. If the government wanted to, following Franck’s reasoning, it could pass a law saying that women can only earn 1/2 of what a man earns, or saying that women cannot go to college, and this would not be a violation of the equal protection clause. But this ignores the plain meaning of the text, which applies the equal protection principle to all people, not just black people.

To use an analogy, this is like arguing that because Madison was persuaded of the need for the free exercise and establishment clauses by seeing Baptist ministers imprisoned in Virginia for preaching their faith in contradiction with the established Anglican church in that state, therefore the establishment clause applies only to Anglican establishments and the free exercise clause applies only to Baptists. But this is clearly nonsense.

This reasoning ignores the fact that particular instances of discrimination and injustice are important only insofar as they demonstrate the importance of avoiding discrimination and injustice in the first place. The importance of the 14th amendment is its recognition of the vital principle that when government treats citizens unequally, providing protection or benefits for one group but refusing them to another, it acts unjustly and illegitimately. When a government deprives an individual of the privileges and immunities of citizenship, it acts unjustly. That is true whether the basis for doing so is race, gender, religion or any other reason.