Wednesday, September 15, 2021

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. 

In his article on abortion and original meaning, published several years before Elena Kagan's confirmation hearing in 2010, Balkin wrote the following: "When the text is relatively rule-like...the underlying principles cannot override the textual command.... But where the text is abstract, general or offers a standard, we must look to the principles that underlie the text to make sense of and apply it." 

Balkin used this framework to argue that the 14th Amendment, read at a suitable level of generality, could justify Roe as an originalist matter because judges today are not bound by the specific expectations of those who ratified the Constitution and its Amendments but rather the broad principles they laid down. Thus, the equal protection principle supports a woman's right to choose. In Balkin's words: "Laws that discriminate against women and keep them in conditions of dependency violate the Fourteenth Amendment's Equal Protection Clause because they violate the principles against class legislation, caste legislation, and subordinating legislation."

This blog post is not about original meaning and abortion with the caveat that, of course, if judges are allowed to use modern standards to enforce broad principles like equality under the law that is not originalism in any meaningful sense of the term as I and others have argued about a zillion times.

Balkin's "originalist" turn was much discussed, debated, and conferenced at the time inside the legal academy. When the piece came out, Elena Kagan was Dean of Harvard Law School and would continue in that role for a couple more years. I have no personal information that she was aware of Balkin's work, but if she wasn't, that would be quite surprising. 

Here is what Kagan said at her confirmation hearing when asked about originalism (this link is to a video clip):

“Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do. In that way, we are all originalists.”

Kagan's "text" and "principle" approach (Balkin's words in his scholarship) to constitutional interpretation is quite similar to Balkin's theory. Let's give Kagan credit for understanding that allowing judges to use broad principles underlying most of the Constitution's imprecise provisions results in the kind of living constitutionalism that originalists have long said they deplored. Nevertheless, her uttering of that sentence--"In that way, we are all originalists"--unlike Balkin's work, reverberated both inside and outside the legal academy in ways I just can't believe she anticipated (she was testifying in front of the Senate which at the time was controlled by Democrats so she knew she had the confirmation all but locked up). 

Justices Gorsuch and Kavanugh both cited Kagan's statement about originalism in their confirmation hearings to great rhetorical effect. But Kagan's statement has been used (read manipulated) in many places before and after those confirmation hearings, almost always by folks who want to pretend that originalism is our law or should be our law. I don't believe, though I concede it is rank speculation, that Kagan would have made that statement without Balkin's scholarship explicitly tying liberal results like Roe to originalism.

Here are representative examples of the attention (read harm) caused by Kagan's statement: 

Senator Mitch McConnell, (2020) sent out a newsletter with the title: "We are all Originalists," citing among others Justice Kagan.

The Blog of the Legal Times (2010), devoted to "law and lobbying in the nation 's Capitol," ran the headline "Kagan: We are all Originalists."

Politico (2010): "Elena Kagan’s testimony during her Supreme Court confirmation hearings...officially ended the heated debate over conservative 'originalism' versus liberal 'living constitutionalism.'"

The Atlantic (2021): "Even Justice Elena Kagan, one of the Court’s more liberal members, said at her confirmation hearing that 'we are all originalists' these days.'"

The Wisconsin Lawyer (2020): 'We are all originalists'.” Or so says Justice Elena Kagan."

The Washington Examiner (2020): "When President Barack Obama nominated Judge Elena Kagan to the Supreme Court a decade ago, she declared in her nomination hearings, 'we are all originalists now.'"

I could go on and on with articles in the media throughout the 2010-2021 period using Kagan's testimony to suggest, well many things, but often using it to support the idea that originalism is now well accepted by even liberal judges, etc., etc. But even academics got into the game. Randy Barnett and Josh Blackman, two well known academic originalists, wrote about Kagan's testimony in National Affairs, albeit with a more critical perspective. They argued that her originalism only applied to the very specific rules laid down in the Constitution (which is in effect what she said). 

But, and the irony of this is almost too much to bear, Barnett has written favorably about Balkin's "text and principle" approach,  which is effectively Kagan's theory as well, even so much as to agree with Balkin that Roe may well be correct under an originalist approach to the Constitution.  Barnett wrote in a symposium on the Balkin article mentioned earlier in this post: "I am in agreement with nearly everything Balkin says about original meaning originalism in Part II of his article. I am also sympathetic with his conclusions about the unconstitutionality of prohibitions on abortion," Kagan would be too. 

Professor Will Baude, who along with Professor Steve Sachs, has been flooding the law reviews with arguments that "originalism is our law," relied on Justice Kagan’s testimony in his seminal piece on originalism in the Columbia Law Review. Of course, a liberal Supreme Court nominee saying we are all originalists is great fodder for Baude's belief that, despite centuries of non-originalist decisions by the Supreme Court, somehow originalism is our law.

All of this, in a word, is nonsense. Of course Kagan is not an originalist in any meaningful sense of that term. As I've written too many times for my health, if originalism means that judges should apply clear text as written but use values other than historical analysis to apply the general principles in the Constitution, then originalism and living constitutionalism are the same thing. But virtually no one outside the legal academy thinks that way. When people hear pundits, academics, and scholars say "we are all originalists" they view that as a political statement more than a complex theory of constitutional interpretation. And, of course, that's the entire point.

Professor Eric Posner (yes the son of the other Posner) understood all this when talking about the Balkin/Kagan text and principle approach. In an interview with NPR, Posner said "I think they (liberals) [are] trying to figure out what the PR angle of originalism is and how to duplicate it." The writer than said, "Posner says he believes everyone is trying to disguise the fact that judges are basically political actors, on the left and right."

Mike wrote an excellent piece on Balkin's work in the Harvard Law Review saying that, "in embracing the originalist label, Balkin aims to accomplish a kind of jujitsu, turning a theory that was engineered largely by political conservatives toward liberal ends."

As I previously wrote on this blog, far from "we are all originalists," we are in fact all legal realists now, though politicians, pundits, academics, and especially Supreme Court Justices keep trying to hide that fact, as Eric Posner suggested. Kagan's misleading sound bite, along with Balkin's attempts to transform living constitutionalism into originalism, have just made it more difficult to see SCOTUS clearly. 

Labels matter, and here so-called liberal originalism confuses and obfuscates how judges decide constitutional cases, all to the effect of helping the Republican Party. In this sense, as Mark Tushnet likes to say, "law is politics all the way down," at least in the constitutional sphere, where so many of us reside.


jostonjustice said...

law today is politics by other means (H/T Clausewitz) ..Kenneth Jost, JostonJustice

Joe said...

There is some argument that Prof. Balkin used the originalist frame as a sort of spin job (many defenders won't frame it that way). And, I think Kagan's usage in the confirmation hearing was similar.

Now, maybe she convinced herself, but that to me is an honest accounting. "Originalism" is like medieval Christianity. It's something people need to nod to somehow, at least if you are going to try to get widespread support.

This is a woman who went hunting with Scalia (surely notable given the leanings of this blog) to get on his/his supporters good side.


I basically agree that calling what Prof. Balkin promotes "originalism" is at best misleading. You take what you have and try to frame it the best way. You have the basic principles and how they were generally understood originally, and argue such and such fits into the hole. That it is not a basic mismatch.

[Like Lincoln said at Cooper Union and elsewhere, the Founders should not handcuff us, but many do think what they said are a sort of rebuttable presumption.]

This is basically common law constitutionalism in practice, but "originalism limits" is to be blunt bs anyway. But, it is sort of taboo to say that, so you have to genuflect some. And, hang out with Scalia maybe.

Michael A Livingston said...

A random sampling of words from Dorf on Law this week: “faux” (false) originalism; alternate views as “nonsense;” the author will assist in the “unmasking” of disingenuous arguments for civility. Like any other reader, I sometimes enjoy terms like these: they give me a sense of being privy to inside knowledge that others are lacking. But is this sneering, contemptuous tone likely to convince people who disagree with you? Perhaps not.

Akron Rick said...

As I understand you, Justice Kagan could have as well said, "None of us is, strictly speaking, an originalist," and we'd all be better off.

Joe said...

Or, at least, say "strict originalism is hard to find ... but many define originalism as ..." Hard to totally summarize her confirmation testimony without doing a deep dive, but that phrasing is honest (mostly) and diplomatic.

Asher Steinberg said...

I probably don't need to preface my comment in this way, but: I am not an originalist and was an early, pretty vehement critic of these Baude/Sachs pieces on my old blog. Still don't think they're anywhere near right today. Agree with you that our constitutional law is more non-originalist than originalist, and that many of our current Justices aren't, on balance, originalists. However, when you say that "Of course Kagan is not an originalist in any meaningful sense of the term," I don't see what's so obvious about that. I'm not sure I've seen a distinctive constitutional-interpretive methodology from Kagan; maybe it's there and I'm missing it. But this is my view, such as I have any.

Kagan is a textualist; she is more of a textualist than Roberts or Alito. That isn't to say that she'll never look at legislative history, but most or almost all of what she's doing when interpreting a statute is technically parsing language in a pretty non-purposivist way (though no interpreter can overlook purposes altogether). Now, when it comes to the Constitution, I think she starts from the same baseline of original public meaning that she does with statutes. Her Seila Law dissent, for example, contains some forceful originalist arguments, which I have no reason to think are advanced in bad faith. But there's a lot of doctrine out there, and she's a greater believer in precedent than most. Given that our law is, as you say, largely non-originalist, this leads her to fiercely advocate for some arguably non-originalist results (then again, I'm pretty confident that, when it comes to something like overruling Abood, you think her view was the one consistent with originalism). At a more meta- level, I'm not sure that that commitment to precedent is non-originalist; as you probably know, there are serious originalist arguments in favor of pretty robust approaches to stare decisis. Finally, I don't think it's wild and crazy for an originalist to openly care about values like democracy that permeate the document, as she does in Rucho. So she wouldn't be anywhere near the top of my list of patently non-originalist Justices.

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egarber said...

Professor Segall, do you think it’s possible to determine the “original” meaning of a principle?

Suppose a parent in 1850 taught her kids to “be nice to others and treat them well”. And maybe that kid never met a black person. Fast forward 150 years to a later generation. If a kid in 2000 applied that principle, acting kindly to black and gay people, could you not say she was acting on the same principle? Original application would be only treating white people well, but principles are more generalized things.

Unknown said...

No one who writes here is even mildly interested in convincing people who disagree with them of anything.

Fred Raymond said...

"....even mildly interested in convincing people who disagree with them of anything...."

Speaking for myself only, I loudly plead guilty to this accusation. After decades of trying, I finally realized that I have zero ability to convince anyone of anything. Every once in a long while, I forget, and I am then forcibly reminded.

egarber said...

I will channel my inner Segall and answer my own question above:

At that level of generality, Living Constitutionalism ALSO treats it as a principle, so there is no difference.

I think in pedestrian circles, this part gets lost. The public perception - largely because of conservative marketing - is that living constitutionalism is literally tethered to nothing. Not true.

Eric Segall said...

“At that level of generality, Living Constitutionalism ALSO treats it as a principle, so there is no difference. “ Spot on. Asher, in a world of many old conservative precedents she cared about a lot, Kagan’s views on precedent would look very different. She was a huge fan of Posner I think and is a pragmatist to the end. Ask Harvard’s faculty if you don’t believe me.

Unknown said...

I was referring to the writers here, not the commenters.

And anyway, it’s fine I think. Think of it as an ideological beehive. Every bee has a certain task. Some collect honey, some protect the eggs, some mate with the queen, etc. so too with ideology. Some websites have the task of convincing moderates and undecideds and wavering Conservatives to switch sides. That is not this site. This site has a different task. Broadly, it is to convince liberals that liberals are smarter and more principled than conservatives. That is it’s task. And it does it fairly well, all things considered.

But very little effort or concern is put into convincing people that they are wrong.

Joe said...

"But very little effort or concern is put into convincing people that they are wrong. "

Prof. Dorf in comments repeatedly tries to explain why comments are wrong. Often responding more than once. He also repeatedly tries to provide an explanation why some position is wrong. It's patently false that he shows "little effort or concern."

Prof. Segall has more of an edge in his posts than Dorf (even more so Buchanan ... does he still think Biden should have resigned from his campaign?), but he does provide "effort or concern" regarding arguing his point. Now, as with Dorf, you might think him wrong. That at times he tosses in some emotional opinion that isn't thought out enough.

But, the framing is off. Yes, this is a liberal leaning blog that promotes a certain point of view. There are others & some that has a different point of view. Many aren't merely trying to "convince people to shift sides." I don't think Volokh Conspiracy or something is that either.

In the overall scheme of things, Dorf and Segall (I think less so ND) puts forth their views, including a professor-like analysis of their position repeatedly. Dorf particularly engages with comments. ND has such an edge in his posts that it is more "preaching to the choir." Prof. Colb is here less, but she often also criticizes strongly. OTOH, some of her stuff has a very professor like tone, though maybe less so here than in her columns (but she doesn't blog here much any more).

"Broadly, it is to convince liberals that liberals are smarter and more principled than conservatives."

That is unfair, but I guess, some comments aren't really there to convince or reason very well, but to serve a different hive function.

kotodama said...

I really appreciate Joe's comments. He said most of the things I wanted to say, but in his more diplomatic way of course.

While Kagan's statement was sort of an (uncharacteristic) own goal, maybe the one saving grace is that I doubt it had much concrete or long-lasting impact on anything. For one, most average folks pay zero or almost no attention to electoral politics, let alone the goings-on at SCOTUS. The legal world (i.e., judges, academics, practicing lawyers, etc.) aside, I'd think even among hardcore amateur SCOTUS-watchers, not that many have a firm grasp of what originalism means. (Of course the definition itself is somewhat disputed, but bear with me.) My point is that the relevant audience for a comment like that is basically legal types and nonlegal types who'd actually bother to watch a confirmation hearing on C-SPAN or at least read about it afterward. That's not a huge crowd. Moreover, I'm not clear on what tangible impact the remark had on that group. Aside from prompting the kind of discussion taking place here, did it have any? It's not evident to me that it did.

I have to say I appreciate Asher's comment too, although at some points, especially the last sentence, it's not clear if he's stating his own views or just characterizing Kagan's.

As a parting thought, although I enjoyed reading the OP, I finished it no clearer on how Balkin "snookered" Kagan than when I started it. Again, while her remark was certainly unwise, I don't see how she was tricked into making it. You really can't put one over on Kagan, so I think it must have been a deliberate choice. Nor do I see any reason why Balkin would want to trick her (or anyone else) in the first place. Maybe I'm missing something though.