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Monday, May 16, 2005

Brown and Originalism: A question for Professor Balkin

Over at Balkinization, Jack Balkin opines (at length, I should add) that the originalist interpretation favoring Brown is pretty weak; and also argues that it looks like originalists are only making this weak argument in order to achieve certain results.

I link it both because it is interesting on its own terms, and also because it relates to my own earlier post on Brown and originalism.  (Where's the linklove, Professor Balkin?)

Professor Balkin: do you think Whelan et al., favor Brown because they can't imagine a world without Brown, or because they realize that if they don't embrace Brown, lots of people will be scared off from originalism?  (My earlier post suggested the latter.)  There's a distinction there, albeit a thin one.

Posted by Hillel Levin on May 16, 2005 at 11:23 AM in Legal Theory | Permalink

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Comments

"I'm asking why they engage in this type of debate if they are committed to the principle derived from political theory that originalism is the only legitimate way of interpreting the constitution."

I wouldn't use "political theory" as a basis for originalism, but rather the Supremacy Clause and the other clauses that use indexical language like "this Constitution." I find this consideration compelling, but not so compelling that I can simply disregard other costs of the view. At any rate, I find that not everyone will find my affirmative case fully compelling, and so the size of the costs is relevant. So I try to see how big the costs are.

"Brown is very important to you. So you make sure your jurisprudence can accommodate it."

It's somewhat important; not having Brown is a cost. I try to see if my general theory can accommodate it (and give it genuine normative backing), and if it can, I'm happy. But I don't see Brown as an any sort of prerequisite. I think I can live without Bolling, for instance.

"What if Roe is very important to you? Or Miranda? Or same-sex marriage? Or property rights? Would it be reasonable for you to re-jigger your juriprudence to account for these?"

I think it would in general be legitimate for those with strong views about particular constitutional cases to try to accommodate those cases in their general theory. The real objection from originalists should be that the general theories frequently end up being very poor, not that individual cases are being used as one of the ways to pick the general theory. I don't think originalism, more than any other general theory, is particularly committed to the primacy of general theory over views on particular cases. At any rate, it needn't be; my form of originalism isn't.

Posted by: Chris | May 17, 2005 2:43:22 PM

I'm not charging them with bad faith. I'm asking why they engage in this type of debate if they are committed to the principle derived from political theory that originalism is the only legitimate way of interpreting the constitution.

Let me try this another way. Brown is very important to you. So you make sure your jurisprudence can accommodate it. What if Roe is very important to you? Or Miranda? Or same-sex marriage? Or property rights? Would it be reasonable for you to re-jigger your juriprudence to account for these?

Isn't the very critique of the originalists that judges who do that kind of thing are simply politicians in robes?

I don't suggest bad faith because that term implies some kind of knowing deceit. I am pointing out what I perceive as a tension here; and I think that the people who are engaged in the debate are well-meaning, honorable folks.

Posted by: amosanon1 | May 17, 2005 1:26:32 PM

amosanon1:
I really don't see why. My current day job is as an epistemologist, and it's commonplace that we have some intuitions about what, say, knowledge has to be, and other intuitions about particular instances of knowledge. We try to get them into an equilibrium, sometimes changing some of our views about specific cases to get them in line with our views about general principles, but sometimes changing some of our views about general principles to get them in line with our views on specific cases. The same process happens in constitutional theory, I think. To charge originalists with some form of bad faith seems a little reckless.

Posted by: Chris | May 17, 2005 1:06:58 PM

Chris: I understand what you are saying, but it seems to me to be a case of results-oriented jurisprudence ("I want originalism and I want Brown, so I need to work out some way to have them both"). And I think that's anathema to the true originalist critique.

Posted by: amosanon1 | May 17, 2005 12:11:48 PM

I've done some work reconciling Brown with a form of partial originalism (and put some of it in a comment to Balkin), and I do it for what might seem a combination of your reasons. Think of it in terms of food: I want my constitutional theory to be as appetizing as possible. This is both for the sake of my own taste and for others. Giving up Brown is definitely a cost, though it may or may not be decisive; not having to pay it would be nice.

Posted by: Chris | May 17, 2005 12:07:01 PM

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