More on Balkin vs. Goldberg

Jack Balkin has written a lengthy response to my post just below. As always, I appreciate his thoughtful discussion of the issues.

I think, however, that he is shifting the terms of the debate. Jonah Goldberg's original column pointed to certain modern liberals who publicly oppose the Federal Marriage Amendment not on substantive grounds, but on the theory that it is somehow inherently wrong to amend the Constitution in any fashion. Goldberg claimed that such liberals are hypocrites to the extent that they also support the idea of a "living Constitution," which in effect allows judges to create new constitutional values without the safeguards of the official amendment process. Goldberg simultaneously claimed that conservatives -- today's conservatives -- are not guilty of the same hypocrisy, because they oppose judicial activism.

Balkin's first response listed numerous cases in which "conservatives" have engaged in judicial activism throughout the past 160 years. And my first response to Balkin pointed out that today's conservatives would disagree with many of the decisions on his list, making the list not-very-useful in judging whether today's conservatives are guilty of hypocrisy.

Now Balkin responds again. Here's the nub of his argument:

[Buck's] approach won't work. It's not responsive to my argument with Jonah. He claimed that judicial activism is a liberal phenomenon. I said that historically it was the product of conservative forces. So to see whether my historical claim is correct we have to look at what those people who were generally regarded in their own time as conservative believed to be the best interpretation of the Constitution. We can't impose the principles of contemporary conservatism because that is anachronistic and indeed, irrelevant to my quarrel with Jonah. For example, the vast majority of conservatives today think Brown v. Board is rightly decided. But in 1954 many, if not most, had very serious doubts about the opinion. The same is true for a whole host of other liberal causes of the 1950's and 1960's which have become part of the consensus that contemporary liberals and conservatives now share.

As I said, this seems to be shifting the terms of the debate. I agree that some historical cases were examples of "conservative" "activism." I just don't think that this tells us anything about whether modern conservatives are hypocrites. After all, Goldberg's main point doesn't depend on the good behavior of all conservative jurists throughout history. His point was that today's conservatives are opposed to the "living Constitution" theory, and that they would therefore be innocent of hypocrisy if they also opposed any "tinkering with the Constitution."

Yes, Dred Scott may have been viewed as "conservative" in its own day. But if, as Balkin admits, no modern conservative agrees with Dred Scott, what non-inflammatory purpose is served by bringing up that case when the question is whether modern conservatives are hypocrites? Balkin states that his argument is meant to criticize the group of people who "who were generally regarded in their own time as conservative." But this is a category that encompasses polar opposites; it is so broad that it is meaningless.

Bottom line -- Balkin's original argument can be boiled down to this:

1. Conservatives claim to disbelieve in judicial activism.
2. Despite 1, conservatives have practiced judicial activism.
3. Therefore, conservatives are hypocrites.

This argument commits the fallacy of equivocation. In 1, the word "conservative" applies to modern conservative thinkers and politicians (whom Goldberg was discussing). The word "conservative" in 2, however, is being applied to anyone at any point in American history who might have been described (in his own time or even in retrospect) as "conservative," even if modern conservatives completely disagree with that person's thoughts or decisions. The argument is therefore invalid, except to the extent that 2 refers to examples of modern conservative judicial activism.

UPDATE: Don't miss Larry Solum's contribution to this "pseudo-debate," as he puts it. In this passage, Solum agrees with me:

The more serious problem is with Balkin's apparent endorsement of nominalism about the categories of "liberal" and conservative." Political parties change their ideologies, and political labels change their meaning. The Democrats were the party of segregation until the 1950s; Republicans took up the banner of state's rights with Nixon's "southern strategy" in the late 1960s. The label "liberal" was associated with free markets and individual liberties until fairly recently; now, these ideas are considered "conservative" by some and "libertarian" by others. Of course, we can be nominalist about our labels for political ideologies. We can say, "By 'conservatism' we just mean whatever is called by that name." But if this is what Balkin means, then his claim that conservatives have a much longer history of judicial activism is not much of a claim.

Right.