Jul 19, 2010

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Balkin and Barnett Bouncing Ideas About The Constitution “Off the Wall”

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Jack Balkin has a great reply post responding to Randy Barnett’s recent post about the constitutionality of the individual mandate.

Jack not only focuses on Randy’s legal arguments, but also focuses on what Randy, and many in his camp, are doing behind the scenes:

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 orignalism– it is a perfect example of how living constitutionalism actually works in practice.).

If Randy and his allies are successful in changing public and professional opinion, then they will move these ideas from off the wall to on the wall. They will make arguments that were once considered frivolous serious arguments, and possibly even winning arguments. They may not succeed. But if they do succeed, they will have changed the practical meaning of the Constitution, and changed it a great deal. In this sense I can report my own view that Randy’s arguments, if accepted, would work a significant change in existing law. Far be it from me to call that change frivolous. It would be very profound indeed.

If this “off the wall” theme sounds familiar, it should, because it is one of Balkin’s phrases to describe his philosophy towards interpreting the Constitution.

In the Constitution in 2020, Balkin uses the “off the wall” imagery to discuss how a social movement can advance and obtain the recognition of certain constitutional rights, such as the right of contraception in Griswold v. Connecticut:

“[S]uccessful social and political mobilization changes political culture, which changes constitutional culture, which, in turn, changes constitutional practices outside of the courts and constitutional doctrine within them.”
Elsewhere Balkin writes in the Constitution in 2020:
In fact, when social movements initially offer their constitutional claims, many people
regard them as quite radical or ‘off the wall’ . . . Yet it is from these protestant interpretations of the Constitution that later constitutional doctrines emerge. Many of our proudest achievements of our constitutional tradition came from constitutional interpretations that were at one point regarded as crackpot or ‘off the wall.’
While liveblogging the Constitution in 2020 Conference at Yale Law School, I noted that according to Balkin, there are 3 values to any constitutional theory. One of which was the value of persuasion.
A constitutional theory  changes when people persuade that what we thought it meant isn’t what it meant. As Balkin explained it, we change what’s off the wall to on the wall. Norms change. What’s unreasonable yesterday may become reasonable today.
Ilya Shapiro and I addressed this very issue in Pandora’s Box:
Regardless of the merits of the modern conception of liberty as a normative matter—we leave that to a different article—this philosophy cannot descriptively be reconciled with the original public meaning of the Fourteenth Amendment. That is, even if a scholar seeking to imbue constitutional provisions with a modern sense of justice acts with strong philosophical and empirical grounding—again a proposition we leave for another day— his efforts cannot be labeled constitutional law (in the sense of interpreting the document under glass at the National Archives). Instead, this is a form of social engineering, using the Constitution to gain legitimacy—or in the words of Professor Balkin, to transform an “off the wall” idea into “on the wall” accepted doctrines218—for political theories that are otherwise not tethered to constitutional text. Reciting phrases such as “equal protection” or “due process of law” [or Commerce] does not work as a talismanic incantation that magically transforms the Constitution into a tool of social justice.219
Indeed, it would seem that Balkin and Barnett–two of my favorite constitutional law scholars–both seem to be bouncing ideas about the Constitution from off the wall to on the wall.
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  • Alan

    I might be mistaken, but I’ve read a number of Barnett’s posts on Volokh about the mandate, and he doesn’t seem to be arguing for changing the law back to the way it was before the New Deal, so much as he’s arguing that the Court’s current Commerce Clause jurisprudence doesn’t support the mandate.

    He argues that this type of exercise of power is “unprecedented,” not just that the current precedent is wrong (though he does believe that).

    • Josh Blackman

      Jack’s point here separates Randy’s legal claims from Randy’s social movement. Everything Randy is doing with respect to the Constitution and our current Commerce Clause jurisprudence is brilliant. But the charge Randy is leading in the popular press and arena of ideas is even more brilliant. He is changing the climate to allow the Court to be comfortable to muster 5 votes. This is what Jack is referring to.

      • http://Website Alan

        Ah, I see. Thanks.

  • http://Website steve rappoport

    Would I be correct in believing that you would like to be part of the change process too?

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  • http://Website steve rappoport

    If Balkin is correct, are Randy et al. doing anything more than engaging in a giant propaganda (or, more politely, public-relations) campaign to steer the judiciary in a certain direction?

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