Founding Compromises & Ideals Again
Jonathan Rowe on Jun 24th 2007
“Without the distinction between the principles of the Constitution and the compromises of the Constitution no moral case for originalism is possible, nor is any case possible against the living constitution.”
Over at Balkinization, guest blogger Malla Pollack makes the leftist case against originalism exactly on the grounds to which Jaffa refers. She writes:
Originalism is symbolically unacceptable. Insisting on original meaning implicitly endorses the exclusions practiced by this country’s acknowledged founders. Slavery, attempted genocide of the earlier inhabitants, Justice Story’s Christians-only reading of religious liberty, property and gender requirements for voting or holding office— none of these positions can be adequately dealt with by blithely claiming that the framing white males were moral enough by the beliefs of their own time. We are not discussing judging them as men. We are considering using them as shared paradigms of the past. How dare anyone ask the descendants of those the founders despised to voluntarily adopt these men as honored ancestors. Originalism has the same emphatic symbolism of hatred as flying the Confederate Flag over a court house. To fulfill Professor Balkin’s (and my) goal of joining the entire citizenry of the United States into a single community aiming at shared redemption, we need to loosen our hold on the past.
Those compromises to which Pollack speaks are serious issues; she is right that no theory which gives them moral legitimacy can take the moral high ground in constitutional debate. Jaffa’s solution, to read the constitution through its ideals not compromises with those ideals is, I would argue, the only way for originalists to preserve that moral high ground.
And indeed, there is a philosophical connection between almost every evil she invokes and the ideals of the Founding: Those “compromises” are only able to be judged as “evil” by using the same moral standards which gave rise to the Declaration and the Constitution in the first place. These are the abstract ideals of the Western Enlightenment — the unalienable rights of “liberty” and “equality” — upon which both the United States and France declared independence and built (or in the case of the French — attempted to build) their new orders.
But I also agree with Jack Balkin that viewing the Constitution through its abstract ideals (what I support), as opposed to the (morally unacceptable) compromises with those ideals (slavery, etc.) opens the door to plenty of “results” with which social conservatives would disagree.
And the case of the failure of the French Revolution demonstrates that allowing compromises with those ideas, but with society changing gradually over time, consistent with those ideals, may be the more practical solution. Indeed, such may be the only way to sucessfully implement those ideals.
For instance, it may well be that the abstract notion of Equality (which is textually supported by both the Equal Protection Clause, and “all men are created equal” in the Declaration) demands a Supreme Court decision guaranteeing gay marriage throughout the nation. But, if that is at all appropriate, for practical reasons it ought not be done until, as with Loving and Lawrence, the overwhelming majority of states are in line with that policy.
What if say, tomorrow, the Supreme Court constitutionalized gay marriage? Well, think…what is one of the main rhetorical points in favor of the FMA? We need this otherwise the Supreme Court will inevitably give us gay marriage. Indeed, until recently, Robert Bork was assuring the public that we will soon get gay marriage through a Supreme Court decision (though with two new conservative confirmations, that prospect looks less likely).
National Gay marriage in 2007 means the FMA in 2008, which, like the French Revolution means the failure to successfully implement Founding ideals of liberty and equality.
If we want the Supreme Court to successfully “settle” the case of gay marriage as it did with miscegenation and sodomy, we will have to wait, just like with those two cases, until the majority of states are in line.
Filed in The Bench, The Bureau
Fred Thompson your man.
I, too, align with Jaffa’s “ideals” approach, but without the “pragmatism” that many include jurists find “compatible” with that approach (e.g., Posner). Language is determinate, and one does not need to (indeed, one cannot) appeal to “original intent,” in yet another fallacy. And Balkins’ “living constitution” only invites more fallacies yet.
Using Article V of the Bill of Rights, as an example, vis-a-vis the Kelo Decision:
“nor shall private property be taken for public use, without just compensation”
The Court decided New London could use eminent domain to confiscate private property so that New London could sell the land to private developers to build condominiums, which had a “public use” in a highly-derivative sense of “increasing the city’s tax base.” One need not appeal to “originalism” to understand that “public use” was not the “intent” or “meaning” of this guarantee, nor does linguistic indeterminacy or a “living document” permit such an expansive, derivative “sense” of “public use.” Where does “increase tax base” hail in the rest of the Constitution as a justification for eminent domain? And Stevens’ casuistry that it was “preferable to defer to legislative bodies” in these “rights” matters stretches disbelief.
The Bill of Rights are not “negotiable,” much less best left in the hands of legislatures! Seriously? They’re not subject to “legislative oversight.” The Bill of Rights are guarantees. Granted, many of the rights conflict, but not so in Kelo. And it’s not for legislatures to determine. That’s the raison d’etre of the Supreme Court, for heaven’s sake.
The only question was whether “public use” meant “anything a government wants, including confiscating from one private party to give to another private party” so it could increase its tax base.” By Stevens’ reasoning, screw the whole Bill of Rights: It’s whatever the legislative bodies determine as “public use,” even if the end user is “private.”
Just as in Plessy, when did “equal protection” have equivalent meaning of “separate, but equal?”
Contracts, of which our Constitution is perhaps the most important, can be renegotiated by the parties, revised and extended by all the appropriate parties, especially when “difficulties” arise. That’s why we have amendments, and why we have Constitutions. But I don’t recall Article V being “revised” by anyone to mean “public = whatever legislative bodies determine, as long as the Supreme Court approves.” “Public use” has a circumscribed meaning: for the public’s common use. Not to justify government’s expropriation of land to achieve more taxes in the hands of plutocracy’ interests. By that reasoning, the Bill of Rights aren’t rights at all. They’re whatever the legislatures “determine” with Court sanction.
Despite Courts’ refusal to “allow” Article IX of the Bill of Rights, imagine if Roe v. Wade (1973) had? The Court and litigants could have appealed and arbitrated between “right to life,” “right of individual autonomy,” “right of self-determination,” “right to self-ownership,” etc., and then arbitrated (i) whether any of these “rights” are rights unenmumerated, (ii) if so, which ones apply, (iii) and arbitrate for the dominant right(s) in a typically weighted cost-benefit analysis, and rendered a decision. If the Court explained its reasoning, some might preferred a different decision, but most would have accepted the logical and reasoned outcome, based on the Constitution’s guarantee of “unenumerated rights retained by the people.” Instead, we got the most circuitous and specious reasoning that “avoided” all the primary “values” in question (and in conflict), overturned the very legislative “authority” Stevens’ appeals to in Kelo, and by judicial fiat “divined” a “right” to abortion (I still cannot find THAT right)! But RICO laws are “constitutional?”
Rather than appeal to “pragmatism,” “originalism,” “indeterminacy,” or “metaphysics,” maybe lawyers and jurists could study inductive and deductive logic, fallacies, sophistry (they seem to have already nailed this one), linguistic use, sense and referent, denotation, and stop “divining” others’ minds, intentional fallacies, or using specious “arguments” where “ends” becomes “means.” They insist they know history, but their decisions do not reflect that knowledge. It might yet make for judicious decisions, rather than casuistry.
Else, Ginzburg, Kennedy, Souter will be “citing” more foreign countries’ laws “as reasons” in their decisions (relevance?). When they cite South Afrika’s apartheid laws, we’re really in trouble? What about Sharia law? The Ten Commandments?
It becomes more difficult to distinguish between ideals and compromises when we recall that the Bill of Rights was the result of a compromise.
We only require more than 1/3 of the states, not “the overwhelming majority of states”, although having a little more is prudent. But we still need to get from 1/3+. How do we get from > 1/3+ if minorities shouldn’t openly lobby for their civic right because it is “too” risky without the support of > 1/3+ of the states? In the real world sitting around waiting for > 1/3+ before the minority speaks out doesn’t get us out of this 1/3+ states supporting that civil right.