Labels Matter: How Professor Jack Balkin Snookered Justice Kagan and Others to Fuel Faux Originalism

 By Eric Segall

In 2007, Professor Jack Balkin of Yale Law School shocked the academic world by arguing that Roe v. Wade could be justified under an "originalist" approach to constitutional interpretation, and that living constitutionalism and originalism were opposite sides of the same coin. Balkin would later expand that article into a book called, of course, "Living Originalism." 

I want to be crystal clear on two points before moving forward. Balkin's descriptive accounts of constitutional law (which rely considerably on social movements) are as sophisticated, interesting, and accurate as any I have ever read. However, his labeling of his theories as "originalism" has not been helpful and has clouded rather than clarified constitutional debates. 

Understanding Government Spending and All That

by Neil H. Buchanan

Last week, I wrote what one might charitably describe as an unrestrained response to Senator Joe Manchin's continued attempts to use cliches and (at best) half-truths to defeat his Democratic colleagues' current spending proposal.  They plan to supplement the physical infrastructure bill that Manchin supports with a "human infrastructure" bill, which is merely a way of saying that the government would invest in improving human beings' ability to function in the economy.  Manchin only wants the bricks-and-mortar bill.

The gist of my argument was that Manchin is engaged in shameless pandering and intellectual dishonesty, an argument that was easy to support by looking at Manchin's own words.  After writing that column, however, I had an "academic moment," in which I returned to a scholars' best instinct: Take a person's words as if they were offered in good faith and ask whether his arguments leave room for reasoned debate that could ultimately converge toward a meeting of the minds.

 

Again, my honest reading of the available evidence is that Manchin is engaged in excuse-making and misdirection, with no evidence that he is interested in being moved to a new position by facts or logic.  But if I am wrong about that, what would I say to try to get him to budge from his current stance?

Unmasking the Power Game Behind Pleas For Civility

by Sherry F. Colb

On September 9, Professors Cornel West and Robert George visited Cornell Law School to engage in civil conversation about topics on which they might disagree. My colleague and friend, Professor Sheri Johnson, expertly moderated the discussion. As a general matter, I like civility. When one can achieve positive ends without being disagreeable, civility is highly desirable. There is, however, a downside to civility that emerged for me as I observed the conversation.

During the discussion, Professor Johnson at one point asked the two men what they thought of the Texas abortion statute that has lately been in the news, SB8. The law prohibits all abortions (save those necessary to prevent a mother's death) starting at six weeks gestation, and it deputizes any private person in the world to bring a lawsuit against a person who induces or performs an abortion or who "aids and abets" the performance of an abortion. I wrote at greater length about this law here. What I will note now is that the statute plainly violates the Constitution under existing doctrine and that it intentionally delegates enforcement to private parties to make it difficult or impossible to declare it unconstitutional prior to its enforcement. The goal is, of course, to deter the universe of individuals who might help a woman exercise her constitutional right to end an unwanted pregnancy, by threatening them with lawsuits by random bounty hunters who have nothing to do with the woman or her wish to have an abortion. What could better capture the sentiment that a pregnant woman is everybody's business?

Anti-Theocracy and the Rule of Law

by Neil H. Buchanan 

 

Yesterday, The New York Times op-ed page ran the latest column from one of their very best (if not the best) opinion writers, the former Supreme Court reporter Linda Greenhouse.  The piece's title, "God Has No Place in Supreme Court Opinions," if anything undersells the import of Greenhouse's coolly impassioned and incisive reaction as the United States "lurches toward theocracy."

 

As it happens, just the day before, I had stepped a bit outside of my usual lanes and published a Verdict column discussing this very issue: "What Would the Church-State Divide Look Like If I Were God? (Irony Alert)."  I typically encourage readers of Dorf on Law to click on my Verdict columns.  Today, I encourage all of you first to read Greenhouse's column and only then to read mine, if you have time.  I believe that my column is worth reading (as one might expect), but I know when to acknowledge a master at work.

Here, I want to discuss some overlap as well as some differences between the two columns (written entirely independently, I should add; Greenhouse and I have never met, and the writing and editing schedules for the columns guarantee that neither of us were influenced by the other's words -- not that I imagine that I am on her RSS feed).  The bottom line in both columns is that the intensifying theocratic repression that dominates this country is truly frightening.

 

I am on record arguing (at length) that his country's days as a constitutional democracy are numbered.  Greenhouse's arguments should remind us that, even if I am later proved wrong and our system survives, this country desperately needs to re-establish a robust separation of church and state.  If voter suppression and gerrymandering do not doom us, uncontrolled theocrats will.

A Modest Proposal: Extend Ex Parte Young to Cover the Likes of Texas Bounty Hunters

 by Michael C. Dorf

Although not widely known by non-lawyers, attorneys who practice in the federal courts are very familiar with the 1908 case of Ex Parte Young for two main reasons. First, it is the leading case articulating the legal fiction that a lawsuit against a government official seeking an injunction directed at that official to act or refrain from acting in some way is not a suit against the state barred by sovereign immunity. Second, Ex Parte Young is commonly cited as vindicating the existence of a cause of action or legal claim against such officials.

In this second function, Ex Parte Young is somewhat redundant with the injunctive relief available against government officials under the main civil rights statute, 42 U.S.C. Sec. 1983. However, there are some circumstances where Ex Parte Young is not redundant. For example, in a case like the 2002 SCOTUS decision in Verizon Md v. Public Serv. Comm'n, the plaintiff was permitted to bring an Ex Parte Young action to enjoin state officials from taking action that violated a federal statute (the federal Telecommunications Act) but not civil rights. A Section 1983 action wouldn't have been available, but Ex Parte Young was.

Because Ex Parte Young is most closely associated with the two important doctrines that bear its name, it is easy to forget the facts of the case. However, they bear examination, because they point the way towards a means for challenging Texas SB 8 and future laws that similarly seek to chill the exercise of constitutional rights while closing the federal courthouse doors to suits for anticipatory relief. Accordingly, let's review what actually occurred in Young.

Joe Manchin Versus Public Investment: Argument by Cliche

by Neil H. Buchanan

Last week, I heard that West Virginia's senior U.S. Senator, Joe Manchin (D, who apparently thinks that it is good form to headline at fundraisers for Republicans in other states) had written an op-ed announcing that he was going to oppose what is now widely known as the Democrats' $3.5 trillion infrastructure budget bill.  No surprise there.  I came across a bit of much-deserved snark at Manchin's call for his colleagues to "take a strategic pause," which was just a few nutrition-free morsels of word salad, but I did not think much more about it.

Yesterday, however, a colleague asked me what I thought about the op-ed, which had been published last week on The Wall Street Journal's infamous op-ed page.  (I am not providing a link to the piece, because it is behind a paywall.  Rupert Murdoch is rich enough.)  After cursing my colleague for putting me in the position where I would force myself to read what Manchin had written, I dove in.

What an unexpected treat!  While Manchin's defenses of the filibuster have been embarrassing efforts that would earn at best a B-minus in any undergraduate course, his pose as a sober centrist on fiscal matters is terrible in a slightly different way.  Yes, when he tries to make arguments, they are full of holes.  Worse, however, is that he relies almost entirely on stale cliches about deficits and supposedly responsible stewardship of the country's economic policy.  (Not that his defenses of the filibuster are cliche-free, now that I think about it.)  This is so bad that it is fun, at least until one remembers the stakes involved.

 

Texas Could Not Get Away With This Absent SCOTUS-Created Limits On Constitutional Adjudication

 by Michael C. Dorf

The Texas Republican lawmakers who enacted S.B. 8--which forbids abortions after roughly six weeks and relies exclusively on private enforcement--bear primary responsibility for both the violation of the constitutional rights of Texans and for the diabolical scheme to deprive them of their ability to challenge the violation before it is too late for thousands of them. That said, the U.S. Supreme Court also bears substantial responsibility.

Much of the SCOTUS responsibility arises out of its refusal to grant interim relief last week. Although I strongly disagree with that decision in light of the balance of the equities, as Chief Justice Roberts recognized in his dissent, the per curiam opinion is not wrong that existing precedent leaves open the question whether elimination of public enforcement enables state legislation to circumvent a pre-enforcement challenge--even when a law's chilling effect will very substantially delay or impede the ability of the law's targets to challenge it in some other way.

But to say that existing procedural law makes the circumvention efforts at the core of S.B. 8 potentially effective is to indict existing procedural law. And let's be clear that the procedural law at issue is the Court's own creation. S.B. 8 is a symptom. The disease is the Supreme Court's justiciability doctrines.