A few days ago, I blogged about Jack’s new modality of constitutional argument. (Total aside, but the other night I had a dream where I was trying to explain to someone the constitutional arguments in favor of same-sex marriage, and I actually used in my dream the phrase “constitutional modality.” Only slightly disturbing). Anyway.

In keeping with my usual policy, I would not comment on Jack’s argument till I gave it some thought. Now, with the help of my blogging-rapporteur Steve R., I offer one possible issue with Jack’s theory. How are people (judges in particular) today supposed to know what will be justice in the future?

Much of Jack’s work is premised on the fact that we should understand the past in terms of how we understand the present. As he described his theory, “Living Originalism”

is faithful to the original meaning of the constitutional text and to its underlying purposes. It is also consistent with a basic law whose reach and application evolve over time, a basic law that leaves to each generation the task of how to implement the Constitution‘s words and principles

…

[E]ach generation of Americans can seek to persuade each other about how text and principle should apply to their circumstances, their problems, and their grievances. And because conditions are always changing, new problems are always arising and new forms of social conflict and grievance are always emerging, the process of argument and persuasion about how to apply the Constitution‘s text and principles is never-ending.

As I wrote in “Originalism at the Right Time,” Balkins’ approach is both originalist and living constitutionalist at once:

Under Balkin‘s methodology, the word original—which connotes something, well, original—very quickly gives way to the other half of the title, living. Through the process of interpretation, Balkin determines what the fixed semantic content of the text was—this is the ―originalism‖ aspect of living originalism. Next, Balkin looks to postenactment developments— from constitutional amendments to judicial precedents, social movements, and other grounds (like Calabresi and Rickert do)—in order to ascertain the principles that give the text its meaning in our modern society—this is the ―living‖ aspect of living originalism.59 Call his approach common law construction.

One of the hallmarks of Jack’s originalism is that the correct temporal framework is whenever Jack wants it to be (usually the most modern, progressive time):

If you adopt a mode of living originalism, then the correct time for originalism is really any time that tells the story of the 61 never-ending redemptive journey of our society. To paraphrase the classic Journey song, ―Don‘t stop, redeemin‘. Because there is no one right time, it is perhaps more appropriately labeled as originalism out of time (extra points if you get the Back to the Future reference, see FN. 62).

But in the past, Jack would only select the temporal location as the present. No longer. Now, Jack is going back to the future.

In this sense, “Arguments from the Future” seems to be a mirror-image of “living originalism.” The latter looks to the present to inform the past. The former looks to the future to inform the present. With both modalities, Jack is able to isolate an ideal time frame, when things are more close to what he sees as the ultimate redemption of our Constitution, and use that to impact present-day adjudication. Living Originalism would appeal to those who are informed by originalism. Arguments from the Future appeal to those who rule for today, with an eye towards the future. In both cases, Balkin’s long arc of society that bends towards Justices impacts the past, the present, and the future, all in one.

Of course, how are we supposed to divine these “principles” for living originalism, or “future” arguments? Jack has no problem doing so, but we can use the reality of same-sex marriage as an example of how tough this is.

President Clinton, who signed DOMA, recently came out in an op-ed saying that it was a mistake to sign it seventeen years ago, but he had to due to political concerns. He wrote:

 As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact, incompatible with our Constitution.

Shouldn’t Clinton have been informed by the future–a future certainly he could have known? No, he wasn’t. He did what he saw as the expedient of the day.

As early as ten years ago, none of the prominent Democrats running for the Presidency in 2004 were able to anticipate the future.

”I don’t believe that is a distinction that makes a difference,” Senator John Kerry, Democrat of Massachusetts, said, declaring himself against gay marriage but in favor of ”civil unions” that would allow gays and their partners tax benefits, health benefits, hospital visitation and other rights accorded married people.

Senator Joseph I. Lieberman, Democrat of Connecticut, took a similar view, as did Howard Dean, who as governor of Vermont three years ago signed the nation’s first law allowing same-sex civil unions in a state. Representative Richard A. Gephardt of Missouri also declared himself in the civil unions camp. It was a position that put him at odds with his daughter, Chrissy, a lesbian, who favors gay marriage and who attended the event with her father.

Seven of the nine Democratic presidential candidates attended today’s forum. Senator John Edwards of North Carolina and Senator Bob Graham of Florida did not show up. They said through spokesmen that they opposed gay marriage but supported extending health and other benefits to the domestic partners of gays.

Of the seven in attendance, only the Rev. Al Sharpton and Representative Dennis J. Kucinich supported gay marriage unambiguously.

…

The question of marriage may be trickier for Democrats, who have been strong supporters of equal rights for gays but who do not want to alienate social moderates.

At one point today, Mr. Kerry, who voted against the Defense of Marriage Act in 1996, a year in which he was up for re-election, remarked that ”marriage is viewed as a union between men and women.” When the remark drew hisses, he interjected, ”That is a historical, cultural view.” When the crowd hissed again, Mr. Kerry simply shrugged and said, ”That’s my opinion.”

Seven out of the nine Democrats running for President in 2009 didn’t see this argument. This is the Democratic Primary that gave us the Howard Dean scream! This was not some moderate gathering of blue dog democrats.

I think Jack gives too much credit to people who can anticipate what the future repercussions of work are, and how societies of the future will view things.

To use a different example, do we view Justice Blackmun and others who joined the opinion as Roe v. Wade as visionaries, who implemented an argument from the future? No, we don’t. In fact, one Professor even wrote a book titled, “What Roe v. Wade Should Have Said.” The premise of that book was that Roe was a weak opinion, and had it been written differently, based only on sources available in 1973, it would have been a stronger foundation for the right to choose. Of course, the editor of that book was Jack Balkin, who knows better than anyone else how a bad opinion, that is perhaps too-future looking, can set back progressive causes.

It’s not enough to simply say that an opinion by a Court may anticipate the future arc towards Justice. Courts are confronted with real problems that can have serious repercussions and backlashes that cannot always be foreseen. How the Court reaches certain conclusions is nearly as important as what that conclusion is. Judges can’t simply rule based on how they perceive the history books will write about them. Arguments from the future must start in the present.

Now, back to working on my book where I write the definitive history of the challenge to the Affordable Care Act 🙂 Writing this book has given me a deep sense of appreciation for telling a case through the historical lens. What may have seemed important at the time, probably won’t be important in the long run. Things that were glossed over at the time may prove pivotal. I will be blogging more about the book soon.

The manuscript went to copy-editor this week. Galleys should be ready by June, and the book is tentatively slated to drop on September 3, 2013.

Update: These signs from the Prop 8 arguments sum it up nicely: