Thursday, August 24, 2006

Abortion and Constitutional Interpretation

Methods of interpreting the Constitution are high on my list of intriguing topics for discussion. Applying such methods to central controversial issues of current law is not just intriguing, but important. Such a discussion is currently happening on the Volokh Conspiracy blog. If you're interested in those topics, I strongly recommend that you read the post, and at least skim through the comments. Then, join in the discussion over there, or post a comment here. I'd love to discuss...


1 comment:

Kevin said...

I briefly looked through Balkin's 65 page paper, read the abstract, and the interesting discussion.

The basis of Balkin's argument appears to be that "Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application."

While I agree that there is a distinction between meaning and application, they are closely related. Meaning is an abstraction of applications and can be defined by the set of all applications consistent with that meaning. Hence, if we are to maintain the original meaning, we must also maintain the original applications, albeit, in their original context. The only caveat here being cases where the Framers disagree, miscommunicate, or misapply their own intentions.

In section II. The Method of Text and Principle, Balkin states: """Thus, for example, the Eighth Amendment’s prohibitions on “cruel and unusual punishments” bans punishments that are cruel and unusual as judged by contemporary application of these concepts (and underlying principles), not by how people living in 1791 would have applied those concepts and principles."""

My difficulty here is that "unusual" is a relative concept, and the framers may have intended it to be relative to a changing society. However, I think "cruel" is more specifically intended to denote some level of morality. As Balkin quotes Scalia as saying, it “is not a moral principle of “cruelty” that philosophers can play with in the future, but rather the existing society's assessment of what is cruel. It means not ... `whatever may be considered cruel from one generation to the next,’ but `what we consider cruel today [i.e., in 1791]’; otherwise it would be no protection against the moral perceptions of a future, more brutal generation. It is, in other words, rooted in the moral perceptions of the time.”

Thus, I think that Balkin may be extracting the wrong principles from the constitution, which is perhaps a remnant of the living constitutionalism he is also attempting to reconcile. Ideally, in our determination of the original meaning, it seems that we should look closely to the intent of the Framers and not merely to a selective abstraction of their intent.

I identify with several of the commenters in the thread. The first post by Joel B. is very good, despite inverting Balkin's terms in his first paragraph. In addition, here are some excerpts from other comments I liked:

Sebastian Holsclaw:
"""I'm not completely happy with his meaning and principle/application dichotomy. It works well for unforseen applications (e.g. if the police invent a technology that can see into your house without knocking or physically entering, it would still be a search). But for applications that were common at the time of ratification, the commonly understood application surely has great relevance to the actual meaning and principles.

His example of women is instructive, but in opposition to the way he actually uses it. Despite the existence of the Privileges and Immunities Clause and the Due Process Clause, the Nineteenth Amendment was still appropriate to secure women's suffrage."""

James Lindgren suggests that Balkin should consider including an analysis of "the responsibility of the mother in creating the interest that is now involved in denying her liberty", and states:

"""BTW, when the framers thought about future change, they usually left it out of the constitution, deciding to put in mostly what was timeless. Interestingly, they almost always looked to Congress (not the courts) as the vehicle for accommodating social change."""

Nathan Wagner:
"""(1) One rather suspects that Balkin's reading of the constitutional guarantees of the equality of women's liberty interest in citizenship requires the systematic elimination of biological differences wherever they impose disparate demands on the sexes - a notion of equality that, taken to its logical conclusions, would constitutionally mandate a vast government apparatus to make all the necessary compensations. I am doubtful about the wisdom and cost of such a project - as well its chances of success."""