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Impressions from the AALS Conlaw Conference

By Jack M. Balkin

Back from the AALS conlaw conference in Cleveland, which I would rate as a success in terms of attendance and the sustained interest in matters conlaw showed by all the attendees. In particular, I thought there was a good mix, both on the panels and among attendees, of younger, mid-career, and older scholars. Several lawprofs at the conference were kind enough to tell me that they had read my Balkinization posts on originalism, which means they read Balkinization! So thank you again to Jack for allowing me to participate.

I won?t go through the program by panel, but you can get insight on what was said on at least two of the panels from Michael Dorf?s blog, Dorf on Law. I will share a thought or two from a small group session on executive power pedagogy. I have the impression most schools require one semester of conlaw, most at four credits. There is an understandable desire to balance cases on structure with rights cases, although at Tulane we take some of the edge off the latter need by having advanced courses in both Fourteenth Amendment and First Amendment, rather than the latter alone. So what tends to get left behind in the shuffle? Executive power! For all the important developments during the Bush administration, it seems separation of powers tends to get left behind in standard conlaw courses. This was distressing to me, as it is one of my favorite topics and I have set-piece presentations on war powers and impeachment, for example, in addition to the standard removal cases, plus Youngstown. But I do understand where other conlaw profs are coming from. If you don?t believe your students will take upper-level non-required conlaw, how can you teach structure without teaching rights? The only point I would make in reply is that separation of powers is the best chance to teach students something about the Constitution outside the courts.

A number of lawprofs noted my posts on Larry Solum?s ?Semantic Originalism,? and, in effect, asked why they should read it given how well plowed the originalist ground has been. People have made up their minds about the validity of originalism and another article seems not likely to change anyone?s opinion. Perhaps because I am overly open-minded or less certain about my opinions than I appear to be, I did tell people that I thought Larry?s article was important. But they pressed and wanted to know why. So here?s what I said. Let me put this in terms of how Solum?s article critiques the standard assumptions of those who believe originalism is irredeemably flawed (I won?t say those people are ?non-originalists? because I have spent some space explaining why I think that term is not helpful).

First, Solum?s article in effect argues that using two different theories of meaning to interpret the Constitution, one for the clauses that are ?clear? or ?hard-wired? and another for the vague clauses everyone is concerned with is incoherent. The Constitution may be unique in various ways but it is probable that if one theory of meaning is helpful in understanding how the clear provisions mean, then that theory will be applicable to the entire Constitution. Therefore we cannot ignore how the clear provisions mean in explaining how the vague provisions mean. Second, Solum critiques the idea that determining constitutional meaning is normative ?all the way down.? Several conversations at AALS showed me this position has had a wide influence, although Solum claims it is rarely argued for explicitly. You could say the whole point of ?semantic? originalism is to show this is false. Presumably if at least part of the meaning of the Constitution is determined on a factual, semantic basis then this disproves at least one version of normative all the way down. But I think we could go further and say if normative all the way down was true, we would live in a much different constitutional world, one in which the legal force of various clear provisions would be thrown into question as soon as it became relatively inconvenient for all parties. My intuition tells me this point has been made in many articles, so I will not elaborate further. And third, I think Solum?s article is basically successful in showing that a theory of semantic meaning, however applicable mostly to the clear provisions of the Constitution, is not trivial for that reason, despite the common assumption that it would have to be.

It?s true that Solum?s article is the size of a small book and perhaps has reached some sort of crossover in terms of opportunity costs incurred in the time it takes to go through it. My own recommendation in coming to grips with the article is to pay close attention to Parts I and III and ignore (at least initially) Solum?s criticisms of other scholars. That will produce a manageable text and you can make up your own mind.

Full post as published by Balkinization on June 08, 2008 (boomark / email).