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Text and Principle: Further Thoughts

By Jack M. Balkin

Thanks to Jack for responding so quickly to my post. I?ll try to keep these further thoughts on a relatively general level, because I don?t mean to respond point by point. Jack makes clear that principles do not have to have a historical pedigree as long as the original semantic meaning of the text is preserved. This clarification makes me think of something that bothered me as I read the Constitutional Commentary symposium. In the world of text and principle, what is the role of amendments and how do you tell when you need one? You might say to alter the semantic meaning of a piece of text (or a Court opinion) we don?t like anymore, but actually there are few amendments that do that. Another possibility is that we add amendments when we need new principles, but that is perhaps made unnecessary by the capaciousness of constitutional principles, a quality that Jack notices. Here we encounter some arguments well known in constitutional history such as: we don?t need the bill of rights because such guarantees were structurally built into the 1787 Constitution, we don?t need the thirteenth amendment because Congress already has the power, we don?t need additional rights guarantees as long as the Constitution is informed by the principles of the Declaration of Independence, and so on.

I believe such arguments rest on a fallacy I call immanence (but I don?t claim yet that Jack commits it). People who believe in immanence tend to see the Constitution as a collection of super-powerful principles capable of handling all subsequent constitutional change. (Another example would be the argument that we didn?t need the 14th Amendment because its section 1 principles were immanent in the 13th (or the D of I)). What?s wrong with immanence? Given the generality of parts of the text and the principles behind it, it would not be too big a step to conclude that we never need amendments. But that can?t be right. History shows that sometimes the resolving power of even very capacious principles (?life, liberty, and the pursuit of happiness?) either runs out or is simply unpersuasive. At that point, we need to define truly new principles and have them recognized in our founding document.

If we reject immanence, we must be able to say something about when amendments are necessary. So why did we need amendments during the New Deal? Again, many New Dealers, including FDR, either assumed or grudgingly accepted (prior to 1937) that amendments were required. Part of the answer is that there were doctrines promulgated by the Court that had to be cut down. But doctrines are founded on principles. I didn?t mean to suggest that the principles that cut against the New Deal came from 1868. As I believe Jack makes wonderfully clear, principles can morph and be updated as circumstances change. By the 1930s, there were presumably no living Jacksonians. But the descendants of Jacksonian (and earlier) principles were very much alive, as Howard Gillman and other historians have shown. They had been altered of course, but what the New Deal contemplated was too radical a break. Amendments were needed, but we didn?t get them. Again, I?m not raising the black flag of illegitimacy. The interesting question is how the New Deal achieved legitimacy (which it did) without amendments.

A point of clarification: when I say the New Deal was inconsistent with prior principles founded in text and history, I am not talking about expectations. I sense this is a tricky point generally, but I don?t believe (to take one example) the framers of the 14th amendment had expectations about the constitutionality of federal and state laws regulating conditions of labor. But they did believe in principles which could not be stretched to cover the New Deal. And of course there were some prior principles from even the founding era that could be cited in favor of the New Deal as FDR did. Problem is, there were many more powerful counter-principles, principles that for understandable reasons, FDR had no sympathy with and never discussed. He had rejected them.

Can the idea of a constitutional construction save the day? I?m afraid I?m still unclear about how one goes about organizing or recognizing a construction. But here is a crucial point. If a construction alters or rejects previous principles thought fundamental, then we are talking about an amending construction and that supports the general theory of constitutional change I have advanced. If a construction cannot be constitutional without being consistent with prior principle, then the legitimacy of the New Deal and other important periods of informal (non-Article V) change cannot be explained. And why is this important? The idea of the New Deal as a sharp break with the past, as a de facto, jerry-built ?amendment? fits much better with the subsequent history of constitutional law and theory than does a theory based on adaptation, one that essentially presents a narrative of continuity. Theory after the New Deal doesn?t look much like the theory that went before. In fact, constitutional theory assumes its modern form only with the New Deal: we get the emphasis on the countermajoritarian difficulty (here I disagree with Barry Friedman), the agonizing over whether the Court has any role in a democracy, the rational basis test, the presumption of constitutionality, and the quest, so ably first described by Ed Purcell, for a new value consensus. These theoretical upheavals are ultimately explainable only as a consequence of a sharp break with prior practice. All that requires explanation and I doubt it can be done through a theory of construction.

Full post as published by Balkinization on May 23, 2008 (boomark / email).