[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.