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Friday, January 05, 2007

Barnett and Underlying Principles

Randy Barnett has posted his contribution to Constitutional Commentary's symposium on Jack Balkin's Abortion and Original Meaning.  In my contribution to the same symposium, The Perpetual Anxiety of Living Constitutionalism, I had made certain predictions about what Randy would say about Jack's article, based on Randy's Taft Lecture and his "Restoring the Lost Constitution."

I was wrong.  I was totally convinced that Randy would dismiss Jack as offering the very "underlying principles" approach he argued against in the Taft Lecture.  How did I get this wrong?  Is anyone else surprised at how easy Randy goes on Jack in this latest essay?

Posted by Ethan Leib on January 5, 2007 at 02:03 PM in Article Spotlight | Permalink


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Tracked on Jan 8, 2007 5:45:49 PM


On Thomas, I agree that his opinion in McIntyre itself looks mainly at the Founder's applications, but he doesn't state the way Raoul Berger does that constitutional applications (in phi-language-ese, the Framers' referents, denotations, or extensions) can't properly change. Thomas puts the focus on the text as the ultimate touchstone: "what the phrases 'free speech' or 'free press' meant to the people who drafted and ratified the First Amendment," as he puts it near the end of the opinion. That suggests Euclidean originalism, rather than Bergerine.

Posted by: Chris | Jan 10, 2007 11:38:59 AM

DG's post nicely gets at the heart of the matter. For me, the problem is that Professor Barnett's approach fails to screen out nonoriginalist results. In construing the Ninth Amendment to require the federal government to justify even exercises of its delegated powers, for example, Professor Barnett takes an approach that is inconsistent with the constitutional text. In my view, that is neither originalist nor interpretivist.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jan 10, 2007 8:33:30 AM

Chris, my apologies if I mischaracterized Justice Thomas. I was trying to contrast Prof. Barnett's originalism, which often admits more than one legitimate originalist resolution to a given legal question, with a type of originalism that purports to operate like a machine that spits out a single correct decision for any given set of facts.

For what it's worth, I quickly read Thomas's concurrence in McIntyre and he seems to be saying just that. His methodology is: (1) look at what the framers said about the particular question at issue; (2) if the framers did not say anything, look to their generation's "practices and beliefs." My impression is that he believes this process can definitively resolve all (or most) constitutional disputes. In McIntyre, for example, he argues that the First Amendment protects anonymous political leafletting because "both Anti-Federalists and Federalists believed that the freedom of the press included the right to publish without revealing the author's name." That's the end of the inquiry for him.

Prof. Rosenthal, perhaps a comparison between Justice Scalia and Prof. Barnett will illustrate why Barnett still considers himself to be an originalist. Barnett's problem with Scalia is that the Justice claims to discover original meaning but then sometimes circumvents that meaning through resort to other methodological tools. Even if he determines that the original meaning of the text of the 8th Amendment permits flogging, for example, Scalia may devise ways to reach a different (incompatible) result.

Barnett, on the other hand, never applies the Presumption of Liberty until after he has narrowed the field of possible results to those that are compatible with the original public meaning of the text. When the original public meaning of a provision is relatively open-ended, its application to a given set of facts may allow a judge to come to multiple legitimate conclusions. Any one of these conclusions is properly called originalist because they are all "rooted" in the constitutional text. Barnett's first step screens out

The Presumption of Liberty is just one possible tool for picking among the various legitimate originalist results. It may not be the best, and it may not even be a very good one. But using it doesn't change the originalist quality of the result, because the Presumption can only be used to select from within a set that has in a sense been pre-screened for its compatibility with originalism.

By way of analogy, if I ask you to choose a fruit from among a set of four apples (which I have selected precisely because they are apples), the criterion you ultimately use to select the fruit (size, color, smell, etc.) does not change the fact that the chosen fruit will always be an apple. Scalia, in contrast, reserves the right to reach back into the basket and choose an orange or a banana when he finds the apples that he had to choose from to be grossly objectionable.

Posted by: DG | Jan 10, 2007 1:30:16 AM

DG mistakes my purpose. I no more wish to endorse original-intention originalism than Professor Barnett's "presumption of liberty." Both suffer from the same defect.

Professor Barnett lays claim to the mantle of originalism because it enables him to argue that he is not merely imposing his own ideological preferences into constitutional law, but instead is engaged in an interpretative enterprise. In his Taft lecture, however, Professor Barnett explains that constitutional interpretation, if it is to be originalist, must be rooted in constitutional text, and not something external to the text, such as what Professor Barnett calls "underlying principles." I quite agree; indeed, this point was at the heart of John Ely's attack on originalism which, he explained, usually relies on all sorts of things that did not actually make their way into the Constitution. But when Professor Barnett relies on a "presumption of liberty" to vest the judiciary with power to assess the wisdom of virtually all legislation, he relies on nothing actually in the text of the Ninth Amendment or the Privileges and Immunities Clause. Instead, he relies on selective quotations from framers (original intent) and his own philosophical predilictions, an approach that he (and DG) appears to concede is not originalist. Professor Balkin's approach is little different. But once we agree that an approach not rooted in text does not qualify as originalist, it is unclear how Professor Barnett (or Professor Balkin) can respond to the charge that he is, in fact, neither an originalist nor an interpretivist, but actually a realist, who seek to advance his own ideological agendas through the medium of constitutional adjudication.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jan 9, 2007 11:31:18 AM

DG: "Some originalists, like Justice Thomas and, presumably, Prof. Rosenthal, would object that Prof. Barnett's public meaning originalism is too loosey-goosey. Better to look to intentions, or to anticipated applications, which will yield much more precise rules of decision."

I can't think of any place in particular that Justice Thomas says anything like that. Raoul Berger, yes, but not Justice Thomas, as far as I know. In his 1995 concurrence-in-the-judgment in McIntyre v. Ohio Election Commission, he cites 1905's South Carolina v. US, which in turn makes clear that unchanging meaning is consistent with changing applications.

Here's what South Carolina says: "The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. Being a grant of powers to a government, its language is general; and, as changes come in social and political life, it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning."

Or as Justice Sutherland put it for the Court in Euclid v. Ambler Realty in 1926, elaborating on South Carolina, "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…"

Posted by: Chris | Jan 9, 2007 10:47:27 AM

Perhaps I shouldn't presume speak for Prof. Barnett, but it seems that Prof. Rosenthal is missing his point. Prof. Barnett's method of constitutional decision making is usually a two-step process, only the first step of which necessarily implicates an originalist methodology. In the first step, you figure out the original public meaning of the relevant text. In the case of the Ninth Amendment, Prof. Barnett argues that the original public meaning is:

"the unenumerated (natural) rights that people possessed prior to the formation of government, and which they retain afterwards, should be treated in the same manner as those (natural) rights that were enumerated in the Bill of Rights."

As this example should make clear, however, the original public meaning may still be too vague to be a useful the rule of decision in concrete cases. The key question--which natural rights are protected?--is left unresolved by the text.

Some originalists, like Justice Thomas and, presumably, Prof. Rosenthal, would object that Prof. Barnett's public meaning originalism is too loosey-goosey. Better to look to intentions, or to anticipated applications, which will yield much more precise rules of decision. If this is what Prof. Rosenthal is intending to say, then perhaps he should say it. But he should also be prepared to defend framers' intent originalism (or whatever flavor) against the various devastating critiques that have been leveled against it.

Assuming we choose to stick with original public meaning originalism, Prof. Barnett would then have us proceed to step two, the Presumption of Liberty, which he admits is "not an interpretation based on original meaning." This is a necessary supplementary step because the original public meaning of the constitutional text is often underdeterminate with respect to particular cases.

It's worth pointing out, though, that he could just as easily have selected some other supplementary criterion, e.g., the presumption of constitutionality, a pragmatic assessment of the probable effects of each interpretation, or something else entirely. As long as the result reached in the second step accords with the result reached in the first step, then it will presumably be a legitimate "originalist" interpretation. Argument about the proper supplementary criterion is an important, but ultimately distinct, concern.

With this in mind, Prof. Barnett's differences with Balkin is as follows. Balkin's brand of originalism is more or less the same as Barnett's, except that Balkin seems to give the principles underlying the text the same weight as the original meaning of the text. Under Balkin's account, you can take original meaning and underlying principles into account at step one. Barnett emphasizes that the principles can only be taken into account at step two, because the text itself must always be primary. Any decision that allows underlying principles to trump original public meaning is not originalist.

As for why Prof. Barnett is going easy on Prof. Balkin, I agree with the other commenters who speculate that he is giving Balkin the benefit of the doubt for now. Prof. Balkin's article is sufficiently unclear on this point of potential disagreement to justify a bit of caution before going on the attack.

Posted by: DG | Jan 9, 2007 2:58:30 AM

It seems interesting to me how similar Prof. Barnett's approach to the 9A seems to be to the Supreme Court's approach to the 11A. Both the 9A & 11A are "shall not be construed" rules of construction, so maybe it makes some sense if we took the 9A "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." Of course, then we'd need to find some independent source for the presumption-of-liberty stuff, akin to the Marshall-Hamilton-Madison ratification comments (see, e.g., here) on state sovereign immunity.

Posted by: Chris | Jan 8, 2007 9:34:17 PM

Thinking by last post too cryptic, let me add a bit.

As I see it, Professor Barnett's approach to the Ninth Amendment essentially ignores its text. The admonition, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," is only a rule for determining the effect of the enumerated rights on unenumerated rights. The text simply does not say that the powers that the Constitution delegates to the federal government must be narrowly construed, nor does it say that they can be exercised only when a judge is persuaded of the wisdom of the federal legislation. As To support this view of the Ninth Amendment, one must rely on a set of "underlying principles," not the constitutional text. That, as I see it, is the essential kinship between Professor Barnett and Professor Balkin.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jan 8, 2007 8:42:36 PM

I believe Professor Barnett's post makes my point quite nicely. Whether one agrees or disagrees with his approach to the Ninth Amendment (and the Privileges and Immunities Clause), it is not originalist.

Posted by: Larry Rosenthal | Jan 8, 2007 7:44:33 PM

If you like original sin puns, I call my whole theory of interpretation the Theory of Original Sinn.

Posted by: Chris | Jan 8, 2007 6:36:20 PM

Larry's Rosenthal's comment does not accurately reflect my views of the Ninth Amendment. There is a difference between its original meaning, which I identify in my recent article in the Texas Law Review, "The Ninth Amendment: It Means What it Says," that can be downloaded here, and how this provision can be put into effect by means of a Presumption of Liberty. The latter I always characterize as a constitutional construction, not an interpretation based on original meaning. A Presumption of Liberty is no more a constitutional interpretation than is the presumption of constitutionality (as qualified by Footnote Four) to which it is opposed, though the former is more consistent with the meaning of the Ninth Amendment than is the latter. And a Presumption of Liberty does not entail that all regulations of liberty are unconstitutional. It merely ;-) places the burden on the Congress to justify its interference with individual liberty as necessary and proper -- just like it currently has to do with (some of) the enumerated rights. Perhaps, the most important implication of the original meaning of the Ninth Amendment is to undercut the constitutionality of paragraph 1 of Footnote Four, which for historically interesting reasons, has become the holy text of modern judicial conservatives. There the Court said that the enumeration of certain "express prohibitions" elevated those rights above, and thereby denied and/or disparaged the "others retained by the people."

Simon, I was one of three attorneys who brought the lawsuit on behalf of Angel Raich and Diane Monson. I did not just represent them at oral argument.

Posted by: Randy | Jan 8, 2007 6:08:43 PM

To be sure, Balkin has committed the very "original sin" (I couldn't resist) that Barnett identifies in his Taft lecture. But consistency is the hobgoblin of small minds.

Barnett's Taft lecture, after all, calls to mind something about pots and kettles. His argument that the Ninth Amendment and/or the Privileges and Immunities Clause invalidates the drug laws (and potentially just about everything else that libertarians don't like) has nothing to do with the constitutional text; it's based instead on underlying principles. These texts tell us nothing about the substantive rights they protect; they can only be construed by reference to an external source. And if there is any justification for construing them as Barnett (or Balkin) urge, it is not to be found in history. As William Novak has demonstrated, economic regulations far more stringent than we see today were pervasive in both 1791 and 1868. Barnett seems to believe that "we the people" somehow tricked ourselves into giving the courts the power to invalidate all of them by adopting a text that he knows (but they didn't) is really a constitutional mandate for libertarianism. Whatever that is, it's not originalism.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jan 7, 2007 1:01:37 PM

I'm mostly reacting to the gentle nature of the caution, especially in light of the aggressive caution Scalia gets in Barnett's work. If Scalia ain't an originalist, Jack Balkin sure ain't one either.Right, but Balkin never voted against a litigant that Barnett represented at oral argument.

Posted by: Simon | Jan 6, 2007 4:44:13 PM

"But," not "put." Baby on my shoulder at the time.

Posted by: Chris | Jan 5, 2007 8:22:00 PM

I think the difference is in the different level of clarity in Scalia and Balkin. Scalia says some things that are very clear put pretty clearly wrong, but Balkin's position is still sufficiently murky that he still has the opportunity to respond, "Oh, yes, that's what I meant. Textually-expressed principles, not text-displacing principles." And Barnett doesn't want to cut off that opportunity unnecessarily.

Posted by: Chris | Jan 5, 2007 8:20:19 PM

Do you think the gentleness also has something to do with what appears to be Barnett's sympathy with Balkin's 'originalist' defense of the right to abortion? At the end of his piece, Barnett hints that he finds Balkin's account of the right persuasive (and perhaps intends to do some 14th amendment work of his own on this).

On the Taft lecture: Scalia, according to Barnett, leaves himself a number of "outs" when originalism doesn't suit him. This despite being held up as the paragon of originalist interpretation. Maybe Balkin, as an incipient 'originalist' of some kind, gets the benefit of the doubt from Barnett.

Posted by: md | Jan 5, 2007 4:12:39 PM

No, that sounds right. I'm mostly reacting to the gentle nature of the caution, especially in light of the aggressive caution Scalia gets in Barnett's work. If Scalia ain't an originalist, Jack Balkin sure ain't one either.

Posted by: Ethan Leib | Jan 5, 2007 3:41:30 PM

Gee, I thought his "caution" about Balkin's approach is exactly a warning against making "underlying principles," rather than text, the originalist source. Barnett does seem to be gentle with his "caution"...this may in part derive from his genuine pleasure that someone of Balkin's stature (and intellectual inclinations) is embracing some form of originalism. Have I missed something?

Posted by: md | Jan 5, 2007 3:13:30 PM

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