A pseudonymous blog about Canadian law and politics. 
This blog should not be relied on as legal advice. 

Friday, August 10, 2007

National Review embarrasses itself

Or would do if it were capable of embarrassment. 

Their "legal expert" Matthew Franck has got himself into an argument with liberal legal scholar Jack Balkin and shows he does not understand extremely basic concepts in constitutional theory. 

In American legal circles, "originalism" certainly started as a conservative slogan. ( This is much less the case in Canada, where it began with people like Frank Scott and Bora Laskin demanding that the courts return to John A. Macdonald's highly centralized conception of federation, as opposed to the more provincialist jurisprudence of the Privy Council.)  The idea was that the Warren Court had stretched constitutional rights far beyond the "intent" of the framers. 

However, over time, it has become clear that private intent at least must be irrelevant to the interpretation of a public document.  All that can matter is the "original public meaning" of the phrases used.  Moreover, since the important phrases describe very abstract concepts ("due process", "equal protection", "the freedom of speech", "interstate commerce"), then meaning is a very small part of constitutional adjudication.  What matters more is the application of these concepts to the impugned government act.  This in turn is going to involve questions of social fact and institutional competence that "non-orginalists" worry about.  At the limit, the distinction between originalism and the "living constitution" starts to break down. ( Although not necessarily totally breaking down: first, we may give some weight to the original generation's "expected application" and, second, some disputes may actually turn on semantic issues.) 

Franck barges into this complex conceptual field in the most arrogant possible fashion, declaring liberal originalists to constitute "faking it," to be a "hoot" and to demonstrate "cynicism."  Balkin responds with an unreasonable degree of civility here and here. 

But in his reply, Franck demonstrates a very basic confusion between judical restraint and originalism.  To read him, one would think that Felix Frankfurter wrote the Federalist Papers.  Remarkably, he seems to think that the post-New Deal understanding of the "interstate commerce" power as plenary was part of the original understanding, a position I can't imagine any historian agreeing with. 

Some of his conclusions are reasonable ones, but assuming that the judicial power implied any power of constitutional review at all, then it must follow that some laws should be invalidated.  And if Franck is claiming that the US Constitution did not imply a power of constitutional review, he needs to take the matter up with Alexander Hamilton:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution.  By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like.  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. 

Brad DeLong has observed that there is no shortage of talented right-wing economists who would like to write for National Review, making its reliance on ignorant hacks somewhat inexplicable.  The same is certainly true for lawyers.  It's a bit of a mystery. 

Update: Matthew Festa has studied citations to the Federalist Papers (the "originalist" source par excellence) in the Rehnquist Court, and has shown that liberals and conservatives cite to them at the same rate.  Someone should do the same for Blackstone and Reconstruction-related material.  I suspect you'd get the same result. 

Update 2: I am not saying "judicial restraint" is a bad principle.  Any and every theory of constitutional law invokes it some of the time.  Total legislative supremacy is perfectly respectable in my book, although I think it is an eccentric view of what the US Constitution requires.