Jack Balkin's Progressive Reformation

Progressive intellectual leaders warred with the U.S. Constitution at the turn of the 19th Century. While conceding that the Constitution was an advance on its alternatives in 1789, Progressives criticized the constitutional system for having too many checks and balances relative to the needs of the modern times of the late-19th and early-20th centuries. Bicameralism, judicial review, the powerful congressional committee system, Progressives argued that all of these had the effect of checking good laws as well as bad. Progressive Sen. George Norris of Nebraska frankly argued that the constitutional system resulted in the enactment of too-little legislation relative to public need.

While effective, amending the Constitution proved too difficult in practice to achieve many of the Progressives’ goals. One means to accomplish Progressive legislative goals without the difficulty of constitutional amendment was the Progressive legal argument that judges should reflexively defer to legislation enacted at both the state and the national level. Taking a cue from Harvard law professor James Bradley Thayer, they argued (among other claims) that legislators were constitutional officials as much as judges were, and legislative action that enacted legislation represented an initial determination that the policy was constitutional. Because legislators were coordinate constitutional officials, the argument went, whatever view a judge had as to the wisdom of the legislation, the judge needed to approve the constitutionality of the legislation unless clearly inconsistent with the Constitution.

Soon after the turn of the century, and far into the 1930s, judges struck down important pieces of Progressive state legislation under the 14th amendment doctrine of “substantive due process.” In the midst of the Great Depression, the Supreme Court struck down key elements of Roosevelt’s New Deal as being beyond the congressional spending and commerce powers. While large electoral majorities embraced FDR and his national economic policies, critical partners in the coalition balked at FDR’s proposal to pack the U.S. Supreme Court to speed its approval of those policies. Whether a switch in time or not, the practical need for packing the Court dissipated by the end of the 1930s, and the change in jurisprudence was solidified by new appointments.

Two issues, however, remained unresolved – one that nagged at New Deal opponents and one that nagged Progressives. The first was the continuing belief among opponents of the New Deal that despite the Supreme Court’s affirmation, many New Deal policies were not really consonant with the Constitution. Secondly, despite their arguments for judicial deference to ordinary socioeconomic legislation, Progressives did not want judges reflexively to defer to governmental officials, particularly at the state level, on select social questions of the day, including legislation that imposed segregation and that trenched on personal rights.

To address constitutional reservations regarding national power to implement New Deal legislation as well as to justify heightened judicial scrutiny of segregation laws and laws imposing on personal rights, the Progressive approach to constitutional interpretation morphed again. The narrative of the “living, breathing” Constitution seemed to square the circle. Unlike Progressives at the turn of the century, the narrative of a living, breathing constitution allowed mid-century Progressives to genuflect toward the Constitution as a good thing in whole, while not impeding select doctrinal changes that advanced the Progressive agenda.

The constitutional status of the death penalty was one example that appeared on the cusp of progressive success in the 1970s. Despite the clear implication in the 5th and 14th amendments that life could be taken by the government (provided that the state did not deprive the convicted of due process), important legal scholars and judges argued that the death penalty should be held unconstitutional as violative of the prohibition on “cruel and unusual” punishment in the Eighth Amendment. The “living, breathing Constitution” meant that some constitutional texts would grow stronger while other texts would die on the vine. And judges would tell us which would live and which would die.

The problem with this move, however, is that ordinary citizens read the Constitution much more naively than Progressive scholars and judges. At any time since his majority opinion in U.S. v. Butler in 1936, large numbers of Americans would almost certainly agree with Justice Roberts on how to read the U.S. Constitution:

When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty — to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.

When my own constitutional law professor quoted this passage from U.S. v. Butler, he deemed it so naïve as to merit no serious intellectual consideration. However naively, the disjuncture in the 1960s and 1970s between how Progressive judges, scholars, and politicians thought we should read the Constitution, and how many every-day Americans thought we should read the Constitution, put Progressives at odds with ordinary Americans who continued to think that they should be able to read the Constitution and understand what it means from its words rather than from judicial opinions.

This disjuncture provided an opening for conservatives. While versions of “originalism” existed prior to the 1980s, it was Edwin Meese who brought the notion to the front and center of the political and legal worlds in the mid-1980s. “Originalism” quickly morphed through several significant variations over the next decade. Justice Scalia ultimately became the most-visible representative of a form originalism, now better referred to as “textualism.”

The initial motivation for originalism was political and anti-Progressive: The idea behind the theory was that if judges were tethered to the actual text of the U.S. Constitution, it would restrain them from construing their personal progressive policy preferences as constitutional mandates.

While that may have been the motivation at the elite level of conservative national leadership, that doesn’t account for it appeal and its success. The basic appeal of textualism isn’t that it serves an ideological agenda. Rather, the appeal of textualism is that it aligns with the common-sense way that ordinary people think we should read the Constitution: You read the text and try to understand what it means. To be sure, I’m not claiming that ordinary Americans have read the U.S. Constitution and understand all that they read. But what I do claim is that, for most ordinary Americans, the way that textualists say they read the Constitution makes more intuitive sense than the way the Progressives say that they read the Constitution.

To sharpen the point, I would posit that most citizens think that what’s actually written in the Constitution matters, and agree that any honest attempt to understand the Constitution means paying attention to what’s actually written. I’d also suggest that the reverse holds as well: there is a nagging suspicion that important Progressive claims of what is constitutional result from attempts to “read into” the Constitution rather than from attempts to “read” the Constitution.

This is the point at which Jack M. Balkin enters with his book, Living Originalism. Balkin recognizes that Progressive approaches to the Constitution have painted Progressives in an intellectual corner that will never sell well to the American public. Balkin includes a lengthy discussion of the need for a constitutional theory that is both broadly persuasive and that invites veneration for the Constitution. Requiring that citizens read judicial opinions in order to understand which constitutional texts are alive and which are dead fails to fill this need. Hence, to offer a credible way to read the Constitution, Balkin believes that Progressives must offer a Progressive version of textualism.

I consider the content of Balkin’s textualism below. Before doing so, however, we should pause and note this signal turn in the thought of a leading Progressive legal scholar. With a nod to on-going contests among rival political groups who argue over what different texts in the U.S. Constitution mean – a process that Balkin (following others) terms “constitutional construction” – Balkin accepts the root commitment of textualism as the appropriate methodology with which to read the Constitution. Constitutional interpretation must be tethered to the text.

If Balkin persuades other Progressives on this point, then his book indeed would signal one of the most significant intellectual shifts in the legal academy in the last 50 years. Gone would be the “living, breathing Constitution,” and gone would be attempts by Progressive scholars to gin up ways to argue (à la Ackerman) that the Constitution has been effectively amended without any amendment actually being adopted in the way the Constitution stipulates.

That said, Balkin writes not only to persuade fellow Progressives, he argues that the textualist methodology he posits cuts against the extant conservative textualism. Balkin aims not simply to argue that Progressives should embrace textualism, he argues against conservative textualists that the form of textualism he advocates is a more consistent form of textualism than they advocate. Key to his argument on this score is the distinction Balkin makes between the “original meaning” of a constitutional text and the “original expected application” of a constitutional text. Balkin argues that conservative textualists often conflate the two.

Consider, for example, racially segregated government schools. Even if the politicians who drafted and ratified the 14th amendment believed that it was wholly consistent with segregated schools, Balkin holds that their beliefs are irrelevant to construing the text of the 14th amendment. The text needs to be construed by what it says, not by what practices its drafters or ratifiers believed would be consistent with the text.

That said, Balkin makes much too much of what he styles as the conservative conflation of the “original meaning” of a text with the “original expected application” of a text. To be sure, liberals have a right to complain that originalism provided a moving target in the short period that began when Meese initiated his full-throated advocacy of “original intent” constitutionalism and that seemingly ended when Scalia (and others) settled on “textualism.” While the theory of “original intent” morphed into “textualism,” the two theories in fact can imply opposite outcomes in the same cases. To take an old example, in The Slaughterhouse Cases, Justice Miller’s majority opinion appealed to the intent of the 14th amendment to secure liberty for freed slaves to deny its broad application to white butchers. Justice Bradley responded as a textualist in dissent, “It is futile to argue that none but persons of the African race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed” (emphasis added).

Despite Balkin’s intimations, the textualist’s methodological commitment is not that legal texts should be construed consistent with the “original expected application” of their framers. In his 1997 book, A Matter of Interpretation: Federal Courts and the Law, Scalia expressly dismisses as “waste” any attempt to construe the meaning of legal texts using their legislative history. Similarly, in a passage that could be lifted wholesale from Balkin’s book, Scalia writes that “the Constitution tells us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation — though not an interpretation that the language will not bear.” He adds, “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.”

To be sure, it may be that Scalia’s judicial opinions interpreting legal texts are not always consistent with what he says is his textualist methodology. But that is a different criticism than the claim that his textualist methodology itself invites a conflation of original expected application of a text with the original meaning of a text. Balkin is simply incorrect when he writes that “Scalia’s version of ‘original meaning’ is not original meaning in my sense, but a more limited interpretive principle, original expected application” (emphasis in original).

While Balkin takes pains to distinguish his theory of “original meaning” from those of textualists such as Scalia, it is unclear just how much real distance there is between Balkin’s textualist methodology and that of extant textualists.

While Balkin agrees that “original meaning” in constitutional interpretation tethers the exegete to “the semantic content of the words in the clause,” it nonetheless

does not require that we must apply the equal protection clause the same way that people at the time of enactment would have expected it would be applied. It does not require that we must articulate the purposes or functions of the clause in exactly the same way the framers and ratifiers would have, or that we apply it only according to their intentions. Finally, it does not mean that the clause can only have the same associations for us that it had for the adopting generation.

Balkin writes this with the apparent belief that those he argues against – conservative textualists such as Scalia – affirm one or more of the propositions he denies. Yet I am unsure that conservative textualism entails any of what Balkin wants to deny in this passage. What Balkin apparently believes he adds to extant theories of textualism is the role he accords in his theory for what he calls “constitutional construction.” In addition to Balkin’s affirmation that he is committed to reading legal texts in their “original meaning,” by which he presumably means understanding legal texts consistent with the semantic content of the words when the legal text was adopted, he also wants to recognize a continuing role for judges, lawyers, politicians and the public in construing the words and phrases of constitutional texts.

Balkin reads a textual invitation to constitutional construction for “future generations” in the open-ended constitutional texts. Here is a sample of passages, which also identify different reasons for his conclusion that the framers “delegated” the “application” of constitutional provision to future generations.

By deliberately using language containing broad principles, specific applications would be left [by constitutional framers] to future generations to work out.

Sometimes it is difficult to produce a rule to cover a wide variety of future situations, and so a standard or principle must do. Thus, choosing a standard or principle normally means that adopters are delegating the task of application to later generations.

[C]onstitutional framers and ratifiers very often use open-ended language that deliberately delegates questions of application to future interpreters . . . [C]onstitutional framers will remain silent about particular issues to avoid destroying a supermajority coalition.

[A] central claim of framework originalism is that we should take the use of abstract language in a constitution seriously as a decision to delegate to future generations.

There are a couple of items to note. First, Balkin does not say that the Constitution delegates questions of textual “interpretation” to future generations. Rather, the Constitution delegates questions of “application” to future generations. This is critical. For Balkin, if interpretation itself were delegated to future generations, then future generations can determine the meaning of the words in a constitutional text without reference to the “original semantic meaning” of the text. Hence, it is only “application” of the text that future generations are delegated, and that application must be consistent with the original semantic meaning of the text for the framers.

It is unclear that conservative theories of textualism reject the idea that texts are necessarily “applied” by future generations. Indeed, the “future generations” language makes Balkin’s claim sound more significant than it is. Unlike judicial decisions, which usually concern events that have already occurred, legislation and constitutions are typically concerned with future activity. Application of laws, whether the language of the law is specific or ambiguous, necessarily comes in the “future.” Legislative enactment of a 55 mph speed limit on a stretch of highway is applied as much “by future generations” as is a commitment to “due process of law.” Similarly, traditional textualism has no difficulty in principle with textual ambiguity: The textualist judge provides a reasonable reading of the text (Balkin’s “original semantic meaning”), and applies it to the case at hand.

Perhaps Balkin means that in providing a legal text with a reasonable construction – based on original semantic meaning – a judge, legislator, or citizen sometimes has a choice among a set of equally reasonable original semantic meanings. Indeed, an “ambiguous” legal text would have a greater choice set than a less ambiguous legal text. In choosing among this set of equally reasonable original semantic meanings, Balkin believes that the choice will necessarily be affected by the judge’s or citizen’s understanding of political events and trends that occurred subsequently to the adoption of a legal text. Again, given the inherently prospective nature of legislation and constitutions, I do not believe that textualist theory would reject what Balkin affirms, provided, as Balkin also requires, that the construction of the legal text is consistent with its original semantic meaning.

For example, in Plessy v. Ferguson, the Supreme Court affirmed the Louisiana law requiring separation of the races in rail cars as constitutionally permissible under the Fourteenth Amendment. The critical factor in this decision was not the Court’s reading of the text of the Fourteenth Amendment, but rather a factual conclusion made by the majority and discussed in the opinion of the Court:

[E]very exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class.

. . .

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Scalia’s form of textualism does not commit judges or citizens to affirm the factual premise in the Court’s opinion in Plessy. Like Balkin, Scalia’s textualism would admit that a change in view as to whether state-enforced segregation seeks to “annoy or oppress” a class of individuals would affect the outcome of a case, even though one’s textualist commitments haven’t changed.

It is not obvious that Balkin goes beyond this. His textualism does not allow future generations to create new meaning out of whole cloth; they are tethered to the original meaning of the constitutional text:

If original meaning is original semantic meaning – the concepts that the framers employed in the words they chose – then fidelity to original meaning does not require following what the framing generation thought the consequences of adopting the words would be. That is especially so when the text employs abstract principles or vague standards. The logical consequence of moving from original intention and original understanding to original meaning is that original meaning originalism – or at least the version I offer here – becomes a form of living constitutionalism.

This does not mean that Balkin would make the same decisions as Scalia. But contrary to straw-man arguments against textualism, the theory does not imply determinant outcomes in judicial decisions. It simply rules out one illegitimate source of judicial indeterminacy – decisions based on the introduction of personal political views untethered to the constitutional text.

Balkin’s book includes extended, descriptive discussions of the way constitutional construction occurs – e.g., how society changes from agreeing with the factual premise of the majority in Plessy to disagreeing with the factual premise of the majority in Plessy. While lengthy, they are largely irrelevant to his methodological argument. So, too, as with Scalia, one need not agree that the cases Balkin considers are consistent with the interpretive methodology he advances in the first half of his book. The aim of both of these aspects of the book would seem to be to calm the fears of his fellow Progressives that textualism is only a status-quo preserving interpretive commitment and necessarily rules out doctrinal evolution as evidence in the long movement from Plessy to Brown.

Balkin’s theory does, however, rule out doctrinal evolution based on ignoring constitutional text. While there is plenty of indeterminacy left in constitutional texts, if Balkin’s Progressive colleagues join him, this would represent a significant shift in the constitutional politics of the last century.