Balkin on Goldberg

In this column, Jonah Goldberg criticizes the idea that amending the Constitution is, no matter what the subject matter, something to be disfavored. Jack Balkin agrees with Goldberg's main point:

Should we refrain from amending the Constitution because it's sacred and the Framers knew what they were doing? I don't buy this particular argument against the Federal Marriage Amendment at all. I agree with Jonah Goldberg that this sort of claim is a non-starter, especially if you believe in a "living Constitution" that responds to the times.

Indeed, the argument for amending the Constitution through Article V is at least as strong as the argument for allowing Article III judges to change constitutional meanings through interpretation, because Article V itself specifies a democratic process for amendment.

"At least as strong." Well, that's something, I guess. On a similar note, I'd say that under our Constitution, the argument for allowing Congress to declare war is at least as strong as the argument for giving the President sole discretion in that area.

Goldberg makes a further point, with which Balkin disagrees:

By the way, I'm singling out liberals for a reason. Conservatives who oppose amending the Constitution are against the sort of judicial activism that rewrites the meaning of the Constitution while leaving the text unchanged. There's nothing inconsistent about being against judicial activism and against "tinkering" with the Constitution through the amendment process. You can't say the same about liberals who see the Constitution as if it were Felix the Cat's magic bag from which they can pull out any public policy they want.

Balkin responds by saying that conservatives are guilty of the same sort of hypocrisy:

Like many people, Jonah fails to realize that liberals have no monopoly on judicial activism. Conservatives, if anything, have a much longer history of reading their values into the Constitution. Here are only a few examples: The decision in Dred Scot v Sanford striking down the Missouri Compromise and holding that blacks could never be citizens, the gutting of the Fourteenth Amendment's Privileges or Immunities Clause in the Slaughterhouse Cases less than five years after the Amendment was ratified; striking down the Civil Rights Act of 1875, which was passed by the very same Congress that passed the Fourteenth Amendment, in the Civil Rights Cases; the creation of the police power jurisprudence of the Lochner Era which selectively struck down labor laws that conservatives didn't like; striking down the federal income tax in the Pollock case; reading the words "other states" in the Eleventh Amendment to mean "other states or same state" in Hans v. Louisiana; the creation of the exception to Hans in Ex Parte Young when Hans turned out to prevent conservative judges from enjoining laws that were inconsistent with their laissez-faire values; the manufacture of federalism doctrines out of whole cloth in National League of Cities v. Usery; and, after National League of Cities was overruled, the creation of new federalism doctrines out of whole cloth to the same effect in Seminole Tribe and Alden v. Maine; the manufacture of the "congruent and proportional" test and its use to limit civil rights legislation in Kimel and Garrett; the continued development of commercial speech doctrine to limit government power to regulate advertising; and last but not least, the application of strict scrutiny to race conscious affirmative action in the face of evidence that the Fourteenth Amendment was not intended or written to enforce a colorblind Constitution.

All I can say to Jonah Goldberg is, Mr. Pot, Meet Mr. Kettle.

An impressive list, and Balkin scores a couple of good points, primarily as to cases that don't follow the text of the 11th Amendment, or the original meaning of the Fourteenth Amendment's Equal Protection Clause and Section 5.

One can quibble about a few of the cases, though: I'm slightly skeptical as to whether the income tax case was really all that "activist," given what the original Constitution said about federal taxation prior to the 16th Amendment. And I'm very skeptical about the claim that the modern Court's halting steps toward protecting commercial speech are "activist" in any sense whatsoever. The true activism, it seems to me, was in the New Deal Court's completely unprecedented decision to strip commercial speech of First Amendment protection.

But even granting that all the above decisions were "activist," I'm baffled as to how Balkin could claim that they were also "conservative" in any meaningful sense. There is nothing -- not interpretive methodology, not results -- that they all have in common.

For example, the effort to restore protection to commercial speech simply wasn't initiated by "conservatives." Two of the most important cases in this area are Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), and Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980). In both cases, all the liberal Justices voted with the majority, and Rehnquist dissented alone. True, these days the Court's liberals seem to disfavor commercial speech, while Justice Thomas has on many occasions argued that there should be no distinction between commercial and non-commercial speech (just as Justice Brennan did in his day). But not even Scalia is with Thomas on this issue. How Balkin can characterize this line of cases as "conservative activism" is a mystery.

Besides, some of the decisions contradict each other. Balkin claims that the Slaughterhouse Cases, where the Court upheld economic legislation, were conservative. (Here he ignores the fact that it is mainly conservatives and libertarians these days -- i.e., Justices Thomas and Rehnquist in their Saenz v. Roe dissent-- who would like to overturn Slaughterhouse.) He then claims that the Lochner era cases, where the Court struck down economic legislation, were conservative as well.

Another example: He claims that Hans v. Louisiana is "conservative" because it held that people can't sue their own state government. He then claims that Ex Parte Young is "conservative" because it held that people can sue state officials. This is a "heads I win, tails you lose" analysis: Balkin attributes the outcome to "conservative" activism no matter which way the Court ruled.

Then there is the claim that Dred Scott was a "conservative" decision. No conservative jurist of the past century would have agreed with Dred Scott, and it is grossly unfair to pretend that Dred Scott is an example of how modern conservatives are hypocrites.

Perhaps Balkin would claim that the Justices who decided Dred Scott would have been seen as "conservative" in their own day. Perhaps; but the meaning of "conservative" has obviously changed dramatically over the past 150 years, so much so that it is utterly meaningless to generalize about how "conservatives" have behaved over that time period. It would be just as (in)accurate to call Dred Scott "liberal," on the grounds that the Democrats of the time were pleased with the decision.

Or perhaps Balkin would point out that Justice Taney claimed to be writing an originalist decision in Dred Scott, and that because today's conservatives also praise originalism, this links them to Dred Scott. But this is inapt. Taney claimed to be originalist, sure, but he got the originalist meaning wrong, as Harry Jaffa has demonstrated at length. (Balkin would have to admit as much, given that he attributes the outcome in Dred not to a faithful rendering of original intent, but to those Justices who were "reading their values into the Constitution.") Besides, if claiming to be an originalist in any one case makes someone a "conservative," then Stephen Reinhardt is a "conservative" (he purported to write an originalist opinion in Silveira v. Lockyer, which held that the Second Amendment was never intended to protect an individual right).

I suspect that Balkin's list of "conservative" decisions from the past 150 years was selected without any reference to what modern conservatives believe, but solely on the basis of what modern liberals disagree with. But many modern conservatives also disagree with either the methodology or the result (or both) in many of the cases on Balkin's list.