Selective Originalism

Jack Balkin is my favorite scholar on the left. I find his arguments more plausible and persuasive than anyone else in his camp (though it is persuasive, ultimately it does not persuade me). His most recent article, Commerce, is a prime example why I like him so much. Balkin attempts to use his version of Originalism to argue that the “text and principles” behind the Commerce Clause justifies the expansion of federal power during the New Deal. It is no secret that Balkin likes the regulatory and welfare state. Most on the left do. But what distinguishes Balkin from others is his approach. He has commandeered originalism, put a twist “text and principle” on it slight, and now wields this sword to support his version of social justice. This is in contrast to Ackerman, who holds fast that the New Deal generated a constitutional moment, which constructively amended the Constitution.

Here is the abstract:

This article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modern regulatory state and its expansive definition of federal commerce power. Some originalists argue that the modern state cannot be justified, while others accept existing precedents as a “pragmatic exception” to originalism. Non-originalists, in turn, point to these difficulties as a refutation of orignalist premises.

Contemporary originalist readings have tended to view the commerce power through modern eyes. Originalists defending narrow readings of federal power have identified “commerce” with the trade of commodities; originalists defending broad readings of federal power have identified “commerce” with all gainful economic activity. In the eighteenth century, however, “commerce” did not have such narrowly economic connotations. Instead, “commerce” meant “intercourse” and it had a strongly social connotation. “Commerce” was interaction and exchange between persons or peoples. To have commerce with someone meant to converse with them, meet with them, or interact with them. Thus, commerce naturally included all trade and economic activity because economic activity was social activity. But the idea of commerce-as-intercourse was broader than economics narrowly conceived – it also included networks of transportation and communication through which people traveled to interact with each other and corresponded with each other.

Understanding “commerce” in its original sense of “intercourse” is consistent with all of the evidence offered by rival theories of commerce as trade or economic activity; but it better explains the source of Congress’s powers over immigration and foreign affairs. It also better explains Congress’s broad powers over transportation and communications networks, whether or not these networks are used for purposes of business or trade.

Congress’s power to regulate commerce “among the several states” is closely linked to the general structural purpose behind Congress’s enumerated powers as articulated by the Framers – to give Congress power to legislate in all cases where states are separately incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action. Properly understood, the commerce power authorizes Congress to regulate problems or activities that produce spillover effects between states or generate collective action problems that concern more than one state.

This basic structural principle explains why Congress’s commerce power inevitably expanded with the rise of a modern integrated economy and society, and it explains and justifies most if not all of modern doctrine. This approach justifies the constitutionality of federal regulation of labor law, consumer protection law, environmental law, and anti-discrimination law; it even shows why a federal mandate for individuals to purchase health insurance is constitutional. Finally, this approach shows why there are still areas where federal commerce power does not extend – these are areas where Congress cannot reasonably claim that an activity produces interstate spillovers or collective action problems, and does not involve networks of transportation and communication.

While I haven’t had the time to go through Balkin’s historical account, which no doubt conflict with Randy Barnett’s history from Restoring the Lost Constitution, I have no doubt it is impressive and persuasive. I expect nothing less from Balkin.

I wrote about Balkin’s approach to the Constitution in the context of the Privileges orImmunities Clause inPandora’s Box. While it is a different Clause, the concept is much the same:

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

Balkin’s constitutionalism always seems backwards looking. It goes something like this: there is a problem which the states can’t handle themselves. Therefore, the Constitution “must” provide a way for the Federal Government to fix it. To wit, Balkin shepherds an impressive array of historical sources to prove why Congress has that power.

The first sentence of Balkin’s article bespeaks his ulterior motive. Namely, bootstrapping the constitutionality of the New Deal onto his rediscovered history of the Constitution:

A good test for the plausibility of any theory of constitutional interpretation is how well it handles the doctrinal transformations of the New Deal period.

Though, I must credit Balkin for one important argument. He calls out, better than anyone else, the hypocrisy of “faint-hearted” or “pragmatic” originalists who cannot rationalize how many products of the expanded commerce power, civil rights laws for example, are any more constitutional than other less popular (among conservatives at least) products, like environmental laws.

Balkin writes:

The rise of the modern state poses a problem for originalist theories of constitutional interpretation. Some originalists, like Justice Antonin Scalia (or Judge Robert Bork) have simply accepted the New Deal as settled even though they believe it is inconsistent with original meaning.2 Justice Scalia has called his acceptance of nonoriginalist precedents a “pragmatic” exception to originalism.3 Other originalists, like Justice Clarence Thomas,4 Randy Barnett,5 and Richard Epstein,6 refuse to make the same concessions to current political realities; they regard significant parts of the New Deal and the legislation that followed it as unconstitutional. For them the question is how best to transition to a federal government that has
returned to its proper constitutional limits.

This is a huge problem for Originalists. And none of them have responded properly. I have grappled with this concept in a series of posts I’ve titled Selective Originalism. One day I’ll find time to write about it.

As always, I look forward to reading Balkin’s work.