Posted by: captainfalcon | June 6, 2011

Putting the Con in ConLaw

A person who lies is thereby responding to the truth, and he is to that extent respectful of it. When an honest man speaks, he says only what he believes to be true; and for the liar, it is correspondingly indispensable that he considers his statements to be false.  For the  bullshitter, however, all these bets are off: he is neither on the side of the true nor on the side of the false. His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose. – Harry Frankfurt, On Bullshit.

The liberal Center for Constitutional Accountability helped finance this white paper advocating leftwing originalism. (Background here.)

This view has been long in the making. Ronald Dworkin gave it its first, naïve*, formulation in his reply essay to Justice Scalia in A Matter of Interpretation. More recently, Jack Balkin has developed and applied a less philosophically innocent – a more arch version of – the approach. (Balkin’s version – which seeks to legitimize in originalist terms abortion, the administrative state, and affirmative action – comes on the heels of his theory that constitutional law consists in a set of contingent rhetorical devices that theoreticians and practitioners must use to advance their interests. Its cynicism is, in Andrew Koppelman’s word, “disgusting.” See, also, here.)

The CAC has bought into Balkin’s view. The paper it has financed is interesting insofar as it is the first attempt (I know of) to reduce leftwing originalism to a recipe – a series of talking points – usable by practitioners and public intellectuals. It marks another step in the movement’s coming-of-age (and so further sullies its purity). The white paper recommends two basic moves: (1) distinguish between the expectations of the framers (conservative) and what the text they wrote actually means (liberal), and (2) foreground the Constitution’s Amendments – Reconstruction era, Income Tax, etc. – and emphasize their Progressive implications. (It also advances an array of dialectical maneuvers to connect the amended Constitution with the original version – e.g. point to the Preambular goal of developing “a more perfect union” – thereby revealing that its author senses how flat appeals to the Amended Constitution, by itself, would fall.)

The reasons given in favor of leftwing originalism are a schizophrenic – at times absurdly cynical – mishmash of the theoretical and the strategic. For example:

Progressive critics who continue to maintain that the actual meaning of the constitutional text demands regressive and sometimes horrific results are simply ignoring the work of their contemporary colleagues in favor of Robert Bork‘s work in the 1970s, an approach that is becoming less and less defensible by the day. Worse, they are inevitably buttressing the conservative claim that the text of the Constitution, if embraced faithfully, is more in line with conservative rather than progressive values.

An even more egregious example: “Were the Constitution, in whole or in its parts, a thoroughly conservative document, disavowing its text might be the only route to follow” comes from a very different place than “the ultimate justification for following the original meaning of the Constitution is that the enacted text is a legal document. It is the law and universally recognized as such.” (Implying, as these do, that ultimately, the law ought to be followed, but not if it is irredeemably conservative, this turns out to be self-serving [therefore] bullshit.)

Yet another:

Progressives, by contrast [to originalists in the eighties and nineties], seemed to be saying a lot of different things at once and seemed to be coming up with complicated explanations as to why the text of the Constitution could not actually be followed as written. The Left‘s [read: nonoriginalists’] real problem may have been that they were too intellectually honest to endorse simplistic slogans about constitutional interpretation. That said, as between an oversimplified commitment to the words of the Constitution and a sophisticated if somewhat opaque justification for departing from those words, it was no contest.

(How felicitous, then, that the simplistic slogans of the right can be pressed into the left’s service, and then they aren’t simplistic slogans. Presto goes the truth.)

In short, a partisan think tank has put out a disingenuous white paper outlining a political strategy that will probably fail, and pretending it is intellectually serious. Newsflash.

* Everything about Dworkin is naïve (definition: he buys into bullshit) which he admits in Law’s Empire when he refers to the “conceptual optimism” of his theory of law.



  1. […] minor shambles on the jurisprudential left An earlier post flagged the first effort (I know of) to self-consciously develop a popular rhetoric of leftwing […]

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