Academic

Griffin Replies to Balkin on Text and Principle

By Lawrence Solum

Stephen Griffin has a post entitled Text and Principle: Further Thoughts, which replies to Jack Balkin's Text, Principle, and Living Constitutionalism (which in turn replied to Griffin's Can Living Constitutionalism Be Defended?).  Here is a taste of Griffin's latest post, which discusses the question whether the New Deal can be reconciled with Balkin's method of text and principle, in general, and whether New Deal decisions can be defended as constitutional constructions in particular:

Can the idea of a constitutional construction save the day? I'm afraid I'm still unclear about how one goes about organizing or recognizing a construction. But here is a crucial point. If a construction alters or rejects previous principles thought fundamental, then we are talking about an amending construction and that supports the general theory of constitutional change I have advanced. If a construction cannot be constitutional without being consistent with prior principle, then the legitimacy of the New Deal and other important periods of informal (non-Article V) change cannot be explained. And why is this important? The idea of the New Deal as a sharp break with the past, as a de facto, jerry-built amendment fits much better with the subsequent history of constitutional law and theory than does a theory based on adaptation, one that essentially presents a narrative of continuity. Theory after the New Deal doesn't look much like the theory that went before. In fact, constitutional theory assumes its modern form only with the New Deal: we get the emphasis on the countermajoritarian difficulty (here I disagree with Barry Friedman), the agonizing over whether the Court has any role in a democracy, the rational basis test, the presumption of constitutionality, and the quest, so ably first described by Ed Purcell, for a new value consensus. These theoretical upheavals are ultimately explainable only as a consequence of a sharp break with prior practice. All that requires explanation and I doubt it can be done through a theory of construction.

As is frequently the case, it may be the Griffin and Balkin are talking past one another.  There are two questions to be addressed:

1. Were the New Deal decisions consistent with the linguistic meaning (semantic content) of the text of the Constitution?  When answering this question, it is important to distinguish between constitutional provisions that are "sharp edged" and draw "bright lines" (e.g., two Senators per state) and provisions that are "vague" and hence create construction zones--areas of underdeterminacy where constitutional constructoin operates.

2. What normative theory should guide constitutional construction?  Balkin's answer to this question relies on the notion of constitutional principles, which bear an affinity to the principles that are deployed in Ronald Dworkin's theory of "constructive interpretation."  But when Griffin asks Balkin for a fuller account of constitutional construction, this is a legitimate question.  As I read the state of play, Balkin's incorporation of the interpretation-construction distinction into the architectonic of the his theory of text and principle is relatively recent.  Moreover, I believe that Balkin began with the view that construction should be guided by what we might call "original principles," but he now believes that new consitutional principles can emerged over time.

Back to the New Deal.  The questions that Griffin poses cannot be meaningfully answered in the abstract way that he poses them.  For the discussion to move forward, we would need (1) to isolate particular elements of New Deal constitutionalism, (2) determine whether they are inconsistent with the hard core of original meaning, and (3) if not, then apply some theory of constitutional construction.

Once we get down to specifics, hard work needs to be done.  For example, on the substantive due process side of the New Deal, it seems likely that the hard core of original meaning would not support the Lochner era interpretaton of due process, but would raise difficult questions about the privileges or immunities clause of the 14th Amendment.  On questions of federalism and the Commerce Clause, a good deal of brush must be cleared to get to the heart of the matter.  Careful reading of the New Deal opinions suggests that the "revolution" was not accomplished by defining interstate commerce so broadly that Congress's direct power became plenary, but instead relied on the "necessary and proper clause," which presents problems of both vagueness and ambiguity.

Given the structure of Balkin's theory, it is open for Balkin to argue that the key constituitional texts--"necessary and proper" & "privileges or immunities"--require construction.  His method of construction then requires identification of constitutional principles, and those principles will then guide the creation of rules of constitutional law that enable the application of the vague provisions to particular cases.

In his most recent post, Griffin is essentially asking whether Balkin believes that a "construction cannot be constitutional without being consistent with prior principle".  My reading of Balkin, but I might be wrong, is that he now believes that constitutonal constructions are not tied to the past in this way.  Dworkin's method, on the other hand, is committed to the idea that principles are discovered by elaborating the theory that "fits and justifies" the entire institutional history of Ameican law.  Hence, Dworkin believes that constitutional principles must be "consistent with prior principle," but only in the sense that his theory specifies that relationship.

The New Originalists (including Balkin, Barnett, and Whittington) mostly agree on interpretation (on my account, they agree that constitutional practice must be consistent with the hard core of original meaning), but they disagree about constitutional construction.  Barnett emphasizes the constraint the constitutional legitimacy places on construction and requires that constructions preserve justice.  Whittington emphasizes the role of politics in construction.  Balkin emphasizes principles.  Given different theories of constitutonal construction, we are likely to reach different conclusions about the New Deal.

From my perspective, the important point to emphasize here is that we need the distinction between interpretation and construction to understand what the debate is all about.  Theories that belong to the originalist family can only accept the New Deal if it turns out that the New Deal Court did not violate the hard core of original meaning.

But a commitment to originalism does not involve a commitment to any particular theory of constitutional construction.  That conclusion may seem counterintuitive, but it follows from the internal logic of the move to "original public meaning" by the New Originalists.  Once we focus is on original public meaning, the recognition that many constitutional provisions are vague is inevitable.  Once originalists grasp this fact, they are driven to the distinction between constitutional interpretation and constitutional construction.  "Original public meaning originalism" is a theory of constitutional interpretation, but precisely for that reason, it cannot be a theory of constitutional construction.

Read Griffin!

Full post as published by Legal Theory Blog on May 24, 2008 (boomark / email).