I was going to write a post about this Jack Balkin essay commenting on Randy Barnett's Taft lecture concerning the various types of originalism. But then I realized, to my surprise, that I hadn't posted anything about Barnett's lecture in the first place. I had begun to do so, and saved it as a draft, but then somehow forgot about it. So I guess now I need to write up something about both the lecture and Balkin's comments on it.
The Taft lecture is an annual event where a leading legal scholar speaks on constitutional interpretation. It is of course named after William Howard Taft, who was not only President of the United States but was also Chief Justice of the Supreme Court. Barnett's lecture this year was entitled Scalia's Infidelity: A Critique of Faint-Hearted Originalism and it was essentially a reply to a Taft lecture delivered by Justice Scalia in 1988, a famous address where he first began the work of separating original intent originalism from original understanding originalism.
Scalia famously described himself as a "faint-heated originalist", by which he meant that where strict originalism leads to heinous results, even he would not follow it. He specifically discussed a hypothetical case where the legislature passed a law prescribing punishment for a crime that included public whippings or branding one's skin. In that case, he writes, âI hasten to confess that in a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging." Barnett writes of the ways in which Scalia's brand of originalism gives him "outs" in cases where he finds the results heinous:
On his account of the proper approach to interpreting the Constitution, then, Justice Scalia proves unfaithful to the original meaning of the text in three distinct ways. First, he is willing to ignore the original meaning of those portions of the Constitution that do not meet his criteria of the rule of law as the law of rules. Second, he is willing to avoid objectionable outcomes that would result from originalism by invoking the precedents established by the dead hand of nonoriginalist justices. Third, where precedent is unavailing as an escape route, he is willing simply to abandon originalist results that he and most others would find too onerous by some unstated criteria.
Barnett then goes on to answer the question of whether Scalia's lack of commitment to originalism dooms originalism itself:
Does Justice Scalia's faint-hearted fidelity to the original meaning of the Constitution not represent something of a refutation of originalism itself. Others have surely taken away this lesson both from Justice Scalia's Taft Lecture and from the way he practices originalism as a justice. And why shouldn't they? After all, if so lion-hearted a jurist as he shrinks in practice from the implications of a theory he so vociferously defends, is this not pretty strong evidence that originalism itself ought to be rejected as unworkable and ultimately unwise?
I think not. Instead, I would conclude from his Taft Lecture and his behavior on the Court that Justice Scalia is simply not an originalist. Whatever virtues he attributes to originalism, he leaves himself not one but three different routes by which to escape adhering to the original meaning of the text. These are more than enough to allow him, or any justice, to reach any result he wishes. Where originalism gives him the results he wants, he can embrace originalism. Where it does not, he can embrace precedent that will. Where friendly precedent is unavailing, he can assert the nonjusticiability of clauses that yield results to which he is opposed. And where all else fails, he can simply punt, perhaps citing the history of traditionally-accepted practices of which he approves.
All of this leads up to Barnett offering some analysis on what a genuine and compelling originalism would look like. In particular, he examines what he calls the "underlying principles" approach and, oddly, he denies that this is the proper way to look at originalism. I say oddly because my reading of his previous work has always been that this is precisely the sort of originalism he has advocated, the idea that one must look to the underlying principles behind various constitutional provisions in order to understand how they should be applied in current situations (rather than looking to how the founders themselves may have implemented them because they often did so in a contradictory manner).
Barnett then claims that the underlying principles approach is widespread among the judiciary and that many judges use it "to limit the scope of the text or ignore it altogether", an argument I found rather odd. I was not the only one who was struck by this argument. Balkin, too, finds it odd:
Randy does not identify any particular adherents of this underlying principles approach, although he claims that it is very common. He might well have picked me as his foil, for as I have argued here, the combination of the original meaning of the constitutional text plus underlying principles is a pretty fair first approximation of my normative approach to constitutional interpretation. (As opposed to my positive theories of how the Constitution actually changes over time).
So I want to use this opportunity to defend what I shall call the "text and principles" approach from Randy's criticism. But I want to do more than this. I want to suggest that Randy's own approach is actually quite close to if not indistinguishable from the "text and principles" approach he seems to criticize.
And this indeed was my first thought when I read it. I emailed Sandefur after I read it commenting that I found it rather strange that Barnett would criticize the appeal to underlying principles when he so often has written of the importance of appealing to those principles himself. The most charitable reading is that he is objecting not to the idea of appealing to those principles but to the idea of appealing to them in a manner that negates the meaning of the actual text, but I am not aware of any situations where this is the case. I would be curious to hear examples that Barnett might give of judges doing this.
There is much more both to Barnett's argument and to Balkin's comments on it. I think Balkin is absolutely right on the necessity of developing rules of implementation based upon the underlying principles in order to apply broadly worded provisions of the Constitution in specific circumstances. Like Balkin, I think that such rules are not only necessary but required by the structure and text of the Constitution itself. And I would argue that, in contrast to Scalia and Bork, who both argue that only those elements of the Constitution that are specific and "rule-like" are judicially enforcable, the framers never intended to have the courts enforce only the strict adherence to the text without regard to the underlying principles. In Federalist 78, Hamilton wrote:
Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
It is not merely the letter of the text that the founders wanted courts to enforce by declaring legislative acts void, but also those acts that violate the "manifest tenor" of the Constitution were to be struck down. This appears to be a command to look to the underlying principles to guide the implementation of the text. Anyway, there is much more and I urge those interested in such subjects to read both Barnett's and Balkin's essays.
I don't get it. Given that flogging would certainly not have been considered cruel or unusual when the eighth amendment was drafted (indeed it would often have been a more lenient alternative to execution), on what non-spurious grounds does Scalia object to, say reading the constitution to forbid executing minors? I know you (Ed) don't have a lot of time for Scalia's originalism, but doesn't that speech expose it as an utter sham? Why haven't Scalia critics been bringing it up constantly for the last two decades?
Well, I suppose that Scalia would say that he simply doesn't think executing someone who commits murder as a minor is cruel and unusual so it doesn't trigger his "heinous results" safety valves. But this is of course entirely subjective, which is exactly what he accuses "living constitutionalists" of doing, simply choosing the outcome he likes best.