Topic category:  Other/General

Ed Whelan, president of the Ethics and Public Policy Center, recently addressed Yale law professor Jack Balkin’s 70-page paper titled “Abortion and Original Meaning” and his 103-page follow-on piece, “Original Meaning and Constitutional Redemption,” which largely deals with comments by various academics to his first piece.

This is a discussion that should not interest only academics, so I am setting it forth.

First, Mr. Whelan summarized Mr. Balkin's argument, as follows:

"1. 'Original meaning' needs to be distinguished from 'original expected application'. A jurisprudence of original meaning is faithful to 'the words of the text, understood in terms of their original meaning, and to the principles that underlie the text.' Original-meaning interpretation is therefore 'not limited to those applications specifically intended or expected by the framers and adopters of the constitutional text.' Rather, the text of a constitutional provision is 'judged by contemporary application of [the] concepts (and underlying principles) [that it embodies], not by how people living [at the time of ratification] would have applied those concepts and principles.'

"Conservative originalists like Justice Scalia (Balkin’s argument goes) have instead adopted a jurisprudence of original expected application. Justice Scalia 'insists that the concepts and principles underlying [constitutional text] must be applied in the same way that they would have been applied when they were adopted.' (Emphasis in original.)

"2. The original meaning of the Fourteenth Amendment’s Equal Protection Clause is to prohibit class legislation, caste legislation, subordinating legislation, arbitrary and unreasonable distinctions, and special or partial laws.

"3. Laws criminalizing abortion violate the original meaning of the Equal Protection Clause because they constitute class legislation and subordinating legislation. They 'impose special burdens on women not suffered by men.' They 'help maintain the unequal and subordinate status of women in society because they help commit women, against their will, to lives of domestic labor and economic dependency.'

"As law professors John O. McGinnis and Michael R. Rappaport nicely put it in their brief critique of Balkin’s argument: Balkin 'undertakes what many previously would have thought a conjuror’s trick: he attempts to locate the constitutional right to abortion, the poster child for imposition of the judiciary’s own idiosyncratic values, in the original meaning of the Constitution.… [His] article has great strategic value [for opponents of conservative originalists]: it attempts to appropriate for the living constitution philosophy the intellectual capital and public respectability that originalism has earned recently in the academy as well as the wider world.'

"Like McGinnis and Rappaport, I believe that Balkin’s 'conjuror’s trick' fails."

With that, I fully agree. The Fourteenth Amendment did not give women the right to vote (the Nineteenth Amendment did) and was not intended to be interpreted as doing so. Nor was it intended to deprive the people, through their state representatives, of their right to regulate abortion.

Mr. Whelan continued:

"The starting point of Balkin’s argument is his distinction between 'original meaning' and 'original expected application'. But his shorthand phrases obscure the actual divide between his approach and the conservative originalists he criticizes.

"Scalia’s jurisprudence is not limited to 'original expected application.' As Balkin recognizes in a footnote, with respect to 'new phenomena and new technologies”'Scalia agrees that originalist interpretation is (to use Balkin’s phrase) 'not limited to those applications specifically intended or expected by the framers and adopters of the constitutional text.' I am not aware of anything that Scalia has written—and I don’t think that Balkin has identified anything—that suggests that Scalia looks only to specific intentions or expectations as to phenomena and technologies that existed at the time of the adoption of the relevant constitutional text. It is true that Scalia rejects (in a passage quoted by Balkin) the notion that 'the very acts that were perfectly constitutional in 1791 … may be unconstitutional today.' (Emphasis in original.) But that rejection is not tantamount to looking only to specific intentions or expectations.

"In a different footnote (in his second article), Balkin quotes (as 'particularly worthy of note') Gary Lawson’s argument that originalism 'is a hypothetical inquiry that asks how a fully informed public audience, knowing all there is to know about the Constitution and the surrounding world, would understand a particular provision.' Scalia may well differ from Lawson on the weight that '[a]ctual historical understandings' should have in this hypothetical inquiry, but it seems to me that Scalia’s focus on the objective public meaning of constitutional text reflects this same hypothetical inquiry.

"The real divide between Balkin’s approach and Scalia’s is which 'fully informed public audience' should be looked to. For Balkin, 'each generation'—or at least each generation’s professors of constitutional law—interprets constitutional text anew. (Balkin’s approach would seem more deserving of the label 'transformable meaning' than 'original meaning'.) For Scalia, the hypothetical public audience consists of those people living when the text was adopted. If Balkin, beyond invoking misplaced clichés like 'the dead hand of the past,' presents a real argument against Scalia on this point, I missed it.

"As law professors John O. McGinnis and Michael B. Rappaport put it in their own brief commentary: 'Balkin presents a false dichotomy—either embrace abstract principles whose meaning is almost infinitely malleable or confine the Constitution to the applications the Framers imagined. We believe there is [a] middle way that is also a better way. In our view, the Constitution’s original meaning is informed by, but not exhausted by, its original expected applications. In particular, the expected applications can be strong evidence of the original meaning. Moreover, reasonable people at the time of the Framing likely embraced such principles of interpretation.

"Balkin responds at length to various of the points made by McGinnis and Rappaport, but I don’t think that he refutes their charge that he has presented a false dichotomy, nor do I believe that he has adequately explored the role that original expected applications should have in original-meaning jurisprudence."

Again, I enthusiastically applaud Mr. Whelan.

In 1823, Thomas Jefferson opined in a private letter how constitutional meaning should be ascertained: "On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it passed."

The initial United States Supreme Court decisions adopted the same approach.

In M'Culloch v. Maryland (1819), Jefferson's cousin, Chief Justice John Marshall, noted that the United States government "is acknowledged by all to be one of enumerated powers," but that "there is no phrase in [the Constitution] which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described."

In Gibbons v. Ogden (1824), Marshall endorsed natural construction of the Constitution, since "the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they said."

In Ogden v. Saunders (1827), Marshall noted that "the intention of the instrument must prevail" and "be collected from its words," "its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended," and "its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them nor contemplated by its framers...."

So Justice Ruth Bader Ginsburg's attempt to find support for abortion in the Fourteenth Amendment is readily understandable, since Roe v. Wade (1973)is constitutional malarkey, but there is no help there for her there either.

Mr. Whelan:

"I turn now to Balkin’s argument that the original meaning of the Fourteenth Amendment’s Equal Protection Clause is to prohibit class legislation, caste legislation, subordinating legislation, arbitrary and unreasonable distinctions, and special or partial laws. I will pass over the question whether Balkin has properly determined this original meaning, and I will instead assume arguendo that he has done so. The questions I would like to pose here are: What sort of meaning is that? How can principles so vague and indeterminate convey any generalized meaning?

"Balkin, I suspect, might wonder whether I am conflating what he calls the two different questions of fidelity ('what the Constitution means and how to be faithful to it') and of institutional responsibility ('how a person in a particular institutional setting—like an unelected judge with life tenure—should interpret the Constitution and implement it through doctrinal constructions and applications'). I accept his distinction—and his related distinction between originalism and judicial restraint. But it seems to me that what Balkin calls the principle of democracy—the principle that the Constitution creates a system of representative government in which issues are presumptively left to the people to decide through their elected representatives—argues powerfully against anyone’s interpreting the Constitution to embody principles so amorphous and malleable as those Balkin discerns in the Equal Protection Clause.

"To state my point somewhat differently: Balkin sees in the Equal Protection Clause 'abstract principles and vague standards that would delegate most issues to the future.' But issues may be left to future generations in two very different ways. One way—the way Balkin posits—is that it is up to each new generation to determine the constitutionally compelled application of these abstract principles and vague standards. A second way would be to read the Equal Protection Clause, insofar as it is vague and indeterminate, as delegating (or, more precisely, continuing to reserve) to the political processes the policy decision to select among the various constitutionally permissible applications—and to revise those selections over time.

"I must also note that Balkin’s distinction between the questions of fidelity and of institutional responsibility appears, in his hands, to become an empty one. In particular, there is no indication that principles of judicial restraint meaningfully supplement what Balkin calls his 'text and principle' originalism. His 'Abortion and Original Meaning' article ends with a lengthy section on 'how courts should enforce the [supposed constitutional] right to abortion,' and there is nothing modest about the 'discourse shaping' approach that he would have courts play. Further, in 'Original Meaning and Constitutional Redemption,' Balkin states that his approach makes Brown v. Board of Education 'a supremely easy case' that 'takes about two paragraphs to explain.' No doubt. Ditto, evidently, for Romer v. Evans and Lawrence v. Texas, as this is the entirety of Balkin’s explanation why the laws at issue in those cases are unconstitutional: 'In my view both laws would violate the principle against class and caste legislation.' To be sure, if all a judge need do is attach one of various malleable labels—class legislation, or caste legislation, or subordinating legislation, or arbitrary and unreasonable, or special or partial—to legislation the judge disfavors, the judicial task is quite easy. And representative government operates only at the sufferance of judges."

Bravo, Mr. Whelan. The medical profession "cured" the "disorder" of homosexuality the easy way: it stopped classifying it as a disorder. If only cancer could be "cured" as easily!

Mr. Whelan:

"As its title suggests, Balkin’s 'Original Meaning and Constitutional Redemption' is in various places suffused with religious rhetoric. Balkin presents his interpretive theory of 'text and principle' as a 'theory of redemptive constitutionalism' that addresses 'the question of our faith in the constitutional system, which is also … a faith in its redemption through history.' We must have 'faith in the redeemability of the Constitution over time,' he tells one advocate of living constitutionalism. In rather mystical language, Balkin presents the Constitution not just as 'basic law' and 'higher law' but as 'our law': 'The Constitution is our law when we feel that it reflects our values sufficiently well that we can identify with it as ours; or, because we feel [we] have a say in what the Constitution means, we have faith that it could and will come to reflect our values better over time…. [T]he idea of constitution as our law … requires an identification between ourselves, those who lived in the past, and those who will live in the future. And it requires faith that the Constitution is either good enough as it is to deserve our respect or that it eventually will redeemed.'

"I find this religion of living constitutionalism puzzling. Why must the Constitution be reinterpreted by each generation to reflect that generation’s own values? Why isn’t it enough that the Constitution leaves broad play to each generation to enact its own values through the political processes?

"Balkin maintains that living constitutionalism (including his theory of text and principle, which he maintains is simultaneously originalist and living constitutionalist) is needed to ensure that the Constitution 'is more than the dead hand of the past' and 'is a continuing project that each generation takes on.' But this claim is doubly defective. First, it ignores the broad play that the Constitution, properly understood, gives to the democratic processes to adapt policies to new conditions. There was never, for example, any 'dead hand of the past' that would have prevented legislative enactment of permissive abortion laws. Second, insofar as it is used for its primary modern mission—the creation of new rights (rather than, say, the conferral on Congress of greater powers)—living constitutionalism entrenches the current generation’s policy preferences in Supreme Court decisionmaking in a manner that deprives future generations of the very adaptability that Balkin and other living constitutionalists say they favor. In short, the 'living Constitution' approach isn’t needed to deliver what it promises and it in fact delivers the opposite.

"But in another respect Balkin’s embrace of the religion of living constitutionalism may be less puzzling, even if his own conscious intentions are (as I will assume) entirely innocent. Who, after all, are the self-anointed high priests of this religion whose stature and power increase as it spreads? Activist judges and constitutional theorists like Balkin, as it happens. Whose power concomitantly diminishes? The very citizens whose constitutional 'perspective' Balkin’s theory supposedly makes 'primary'."

Game, set and match point. Mr. Whelan. The judicial activists' problem is that they want to amend the Constitution under the guise of interpreting it instead of following the amendment procedure prescribed in the Constitution. OUR problem is that they have successfully done it many times.

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.