Posted by: Chris | July 20, 2010

Noncognitivist constitutional theory

[posted by captainfalcon]

Jack Balkin has a superb post about whether the Commerce Clause challenge to Obamacare – championed by Randy Barnett – is “frivolous.” Barnett, obviously, says it is not, and (very early on) he developed a debunking story to tell about those who say it is: they don’t really believe it, because why else would they, following the Justice Department, argue that Obamacare is a legitimate exercise of Congress’s Commerce and Tax powers? This, as he ostentatiously puts it, is a “tell,” and what it tells us is that Obamacare’s defenders aren’t confident that their Commerce Clause rationale is sound.

Balkin has a specific objection to Barnett’s genealogical critique (lawyers who want to defend a particular proposition of law – as opposed to a proposition of law plus a rationale for it – raise multiple theories for strategic reasons, independent of what they think of each theory’s soundness). He also thinks that Barnett’s critique and its corollary (that the Commerce Clause objection is not frivolous) do not aim to be true, they aim to make themselves true. As Balkin puts it:

Randy Barnett wants you to know that his arguments are not frivolous. But he is not simply reporting a fact about the world. He is engaged in a performative utterance. He is trying to make this statement true by the fact that he, a prominent constitutional theorist and litigator, is saying it. And he is trying to get enough people to agree with him so that what he says is true will actually become true.

Randy is part of a large group of conservative and libertarian lawyers, politicians, and activists who want to change the public’s mind about the powers of the federal government. They want the public and the courts to rethink the assumptions of the activist state that came with the New Deal. They want to restrain the growth of the federal government and push it back, because they believe that this is more faithful to the Constitution as they understand it.

Randy and his allies are trying to change people’s minds through op-eds, speeches, protests, and litigation. They are trying to move things from “off the wall” to “on the wall.” And this is not the first time people have tried to do this. All social and political movements that seek to change the Constitution in practice do something like this, although the exact strategies and methods may differ. Attempting this is part of the process of constitutional change. It is an aspect of of living constitutionalism. (This is one of the greatest ironies of modern conservative originalism– it is a perfect example of how living constitutionalism actually works in practice.).  

That seems right, although the irony is not damning. Living constitutionalism (in the sense Balkin here uses it) is a descriptive theory; modern conservative originalism is a normative theory. And the one does not cast doubt on the feasibility of the other: the processes of living constitutionalism can result in the ideological dominance of originalism. 

Arguably more damning is Balkin’s own genealogical critique of Barnett’s project. Balkin thinks Barnett’s writings aim to persuade people to see America and its Constitution in a particular way in order to bring America closer to his favored political vision. If we should be suspicious of scholarship that is in the service of ideological ends, then we should be suspicious of Barnett’s theorizing.

On the other hand, what if Balkin’s genealogical critique can be generalized? What if all constitutional theories have political (or proto-political, e.g. sentimental) motivations?* It might then be that, as CLS would have it, “law is politics” – the nature of the jurisprudential game is to give ostensibly non-political justifications for politically motivated interpretive methodologies. This has three noteworthy implications.

First, Barnett’s polemics are as legitimate as all constitutional theorizing, because all constitutional theorizing – right down to the level of their historical narratives – is polemical. A closely related implication: either we provide a special explanation – that does not cite the value of ascertaining the truth – why the activity of constitutional rhetoric is worth doing, or we repudiate it. (The special explanation will probably suggest that the true nature of constitutional theory should remain esoteric, or that it should be generally dissiminated, or that all should choose to neglect it.) 

Finally, if we are convinced that law is politics – and, thereby, commit ourselves to a (sufficiently sophisticated) conventionalist** account of what the law is at any given time – then we have another answer to Shapiro-cum-Dworkin’s objection to legal positivism: scholarly, theoretical debates on the grounds of law are bunk. Incredible? Look at Jack Balkin. Look at Randy Barnett. 

* This would include Balkin’s own theory that the Constitution, on an originalist understanding, licenses the modern administrative state. Given Balkin’s politics, the inconceivability of the modern administrative state to the Constitution’s framers, and the fact that the Constitution is a compromise document written to deal with local problems, Balkin’s use of originalism seems opportunistic – perhaps an attempt to neutralize what Balkin regards as a growing political threat (“modern conservative originalism”).

** I expect – though we’re getting really dubious, here – that Oakeshott’s notion of a “tradition” might help explicate the conventionalist account of law I have in mind. The law is whatever our legal tradition licenses; our legal tradition is a matter of convention (though not human design); thus the law is a matter of convention.

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Responses

  1. Balkin doesn’t actually claim Barnett is trying to advance a political vision, but rather concedes it is, at least for Barnett – nad he doesn’t challenge him on that – a Constitutional one. Compare:

    Your summary of Balkin:

    Balkin thinks Barnett’s writings aim to persuade people to see America and its Constitution in a particular way in order to bring America closer to his favored political vision.

    Balkin:

    Randy is part of a large group of conservative and libertarian lawyers, politicians, and activists who want to change the public’s mind about the powers of the federal government. They want the public and the courts to rethink the assumptions of the activist state that came with the New Deal. They want to restrain the growth of the federal government and push it back, because they believe that this is more faithful to the Constitution as they understand it.

    Obviously, what Balkin is describing here is a political effort, but it is a political effort on behalf of a Constitutional vision. He doesn’t question this at all – indeed it is central to his point. Because if for Balkin Barnett were pursuing merely a political vision via Constitutional means, there would be not much theoretical payoff for Balkin in terms of Constitutional theory. The payoff comes precisely in the view that what Barnett and allies are pursuing is in fact real change to the effective Constitution that we have in place in this country, from something that it currently is to something else. He is precisely not saying that all Constitutional change is just dressed up political change, whatever we might think about whether it is or not.

    Your point that it isn’t inconsistent that living constitutionalism could as well be a vehicle for Originalism as for any other mode of interpretation is well taken, though it doesn’t really contradict Balkin’s view that it could be ironic. The real question of whether Originalism but not just O-ism in general but the Originalism that has the specific content that its most active current proponents (extreme limits on the scope of government action, etc.) amounts to nothing more than “just another” doctrine that can caompete with others in a framework of living constitutional interpretation rather than The One True Interpretation, depends, of course on whether, firstly, Originalism in general wins out in that interpretive competition, and then whether that specific variant of Originalism is in fact a truly drawn historical account of the Framers’ intent (if such a thing can be abstracted from the various dissenting participants), and then whether that view in turn can win out and come to be standardized as the correct interpretive approach.

    • Michael,

      1) Even in the part of his post that you excerpt, Balkin implies that Barnett’s constitutional vision is motivated by his political vision: “Randy is part of a large group of conservative and libertarian lawyers, politicians, and activists who want to change the public’s mind about the powers of the federal government” (emphasis added). It sounds to me that Balkin is aiming to describe a political movement (libertarians and conservatives) looking to further a political goal. True, he adds that they believe the Constitution requires that we diminish federal power – he acknowledges, in other words, that the group of which Barnett is part have a constitutional vision – but the motivation behind this vision, the goal towards which it is oriented, is political. In short, “Balkin thinks Barnett’s writings aim to persuade people to see America and its Constitution in a particular way in order to bring America closer to his favored political vision.”

      Independent of what Balkin thinks, it is also the case that Barnett’s constitutional vision is, quite explicitly, political. Restoring the Lost Constitution is worth doing because the “Lost Constitution” just so happens to be a libertarian document. (Barnett’s argument for originalism is not based on considerations of popular sovereignty or consent; the first chapter of Restoring the Lost Constitution is an extended attack on the claim that the Constitution is legitimate because “we” have consented to it.)

      2) I agree with you that Balkin does not seem to think that all constitutional theorizing is “just politics.” (Nor, obviously, does Barnett think that the fact that his constitutional vision is politically motivated casts doubt on the soundness of his constitutional vision – though it clearly does.) My point in the “what if Balkin’s genealogical critique can be generalized” part of the post is (i) to explore what, indeed, would follow from the generalization of that critique, and (ii) to notice the irony, which gives weak support to the claim that Balkin’s genealogical critique can, indeed, be generalized, that Balkin’s own version of originalism seems uniquely susceptible to Balkin-style genealogical take-down.

      3) I never said – seems to petty a point to make – that because modern conservative originalism and living constitutionalism are compatible, Balkin misidentifies an instance of irony; I said the irony Balkin identifies isn’t “damning.” Of course, regardless of whether modern conservative originalism is the One True Interpretation (which does depend, in part, on whether it has an accurate account of either the Framers’ intent or the Constitution’s “public meaning”), it will have to “compete with others in a framework of living constitutional interpretation” – that is just a descriptive fact about how jurisprudential ideologies interact.

  2. […] One possible response – outlined here – is to deny that I’ve gotten Balkin’s goat by denying that there’s any […]


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