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September 20, 2021


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Anonymous Bosch

Proposition #1: "In fact, I argue that slavery’s influence on the historical understanding of federal powers provides a strong reason to reject any theory of interpretation that makes history dispositive of constitutional meaning (including Balkin’s Living Originalism, at least with respect to powers)."

Including the history of slavery itself?

How about the history of the women's suffrage movement?

Proposition #2: "Only by fully acknowledging slavery's role can we build the best case for the type of living constitution that would allow for meaningful change in the Supreme Court's federalism doctrine."

Surely you recognize that those two propositions are in direct contradiction, no?

At any rate, a "Retrograde Amnesia" theory of the constitution sounds very much like postmodern literature and not at all like something that could be a plausible, workable view of a constitution or the rule of law. Your (by comparison, more moderate) "Discounted History" theory, though, would also leave unmotivated reasons to seek ("discover") alternative meanings - including for living constitutional flights of fancy.

For example, Clause X meant phi in 1787. That meaning was in turn very much a product of the contemporary federal government's interest in murdering Indians. But we, as responsible constitutional theorists, discount historical understandings, so that, in the least, such facts and meanings cannot be dispositive; other considerations will, instead, really steer our meaning-selection processes. Hence, either preserving or altering Clause X's meaning is generally unmotivated in either direction if one merely considers the historical understandings.

One ought also to ask why, even if it is true that the antebellum slavery issue was "a" "powerful motivation" for the Limited Federal Power view, the latter must be impugned or abandoned in favor of alternatives? Were there other powerful motivations for the view, too? Are those motivations thereby nullified or indelibly tainted by virtue of association with that one motivation? How do those other motivations otherwise weigh up against competing views for more expansive powers? Further, are there no present-day, distinct motivations for a Limited Federal Power view? Have you proffered some credible metric by which to weigh any such motivations AND views?

Jeff Schmitt

Thanks for the comment. I don't see the contradiction between my two propositions. My basic point is that there was a national consensus around the fact that federal powers were extremely narrow prior to the Civil War, in large part because of southern fear that expansive federal power could be used to abolish slavery. My normative argument is relatively intuitive--it seems hard to justify striking down majoritarian legislation today to preserve a system that was designed to protect slavery. Personally, I favor Ackerman's theory of constitutional change.

Responding to your last point, you are correct that slavery was not the only motivation for limiting federal power prior to the Civil War. However, it was the prime motivation for many people and probably the only reason that narrow federal powers became so entrenched, especially after the Founding.

Anonymous Bosch

Well, then you probably ought to think more about what your own two propositions mean. The first says that the historical understanding's being shaped (in part) by slavery, that alone is a reason to reject any theory that makes history dispositive of constitutional meaning. The second proposition says that historical understanding is dispositive for selecting a form of constitutional theory after all.

Even with first proposition you treat the history as being dispositive, as it were: the historical meaning is deemed to be the dispositive basis for its exclusion of its continuing to serve as a candidate meaning (amongst rival candidates today) and so for settling on another. If you didn't treat as the history as being "dispositive" thus, there'd be grounds for keeping it as a candidate and settling upon it as the right one.

Perhaps you don't see the contradiction because you think the first proposition only means that "treating historical meaning as being dispositive" only means "suffices for championing that particular meaning". But this isn't so; the proposition equally means treating the historical meaning as being dispositive to exclude candidates and so to settle on an alternative. Indeed, you wish to champion an alternative meaning PRECISELY because of your distaste of the historical understanding's influence upon the Limited Federal Power view. (Of course, that's just to the extent that one even lends credence to the theory qua theory, rather than it just serving as a veneer to advance one's political preferences upon ulterior grounds anyway).

You say that the LFP view was "in large part" due to Southern fears. Insofar as you treat that as being the predominate reason, that's actually nonsense - even on the historical record: people didn't want a large federal government because they had a plethora of reasons to be fearful of such large aggregations of centralized power. This, based on their understanding of British, European, and Roman history. That includes a great many Northerners, too. (The Northerners may have been fearful of undermining the Union, moreover, but it couldn't be said that THEY were fearful of undermining slavery, at least not in the couple of decades preceding the War of Northern Aggression). That LFP view, moreover, was manifest up to the 1930s and the Four Horsemen; those guys obviously weren't striking down federal legislation because they wished to preserve slavery...

Since, again, there are multiple motivations for the LFP view, you need some credible basis to by which to weigh the motivations and meanings.

You say "My normative argument is relatively intuitive--it seems hard to justify striking down majoritarian legislation today to preserve a system that was designed to protect slavery."

What you're actually impugning and calling into question is the very legitimacy of the entire US constitution, not just the scope of federal power. Insofar as yours aims to be a normative argument, it's impoverished, as it actually seeks to preserve and expand upon that which was grounded in the morally illegitimate. And when one suggests to you that there may be sound alternative bases for that system and understanding the scope of federal power, you are dismissive of them based upon that one.

Well, if that's your game, let me throw another bone into your mix. Part of the motivation to seek increases in federal power in the 19th century was to better effectuate the colonization of North America and thereby displace the indigenous population. Are all possible meanings of the federal power therefore, and thereby, impugned, historical and otherwise? In other words, does that historical sin thereby taint any and all possible meanings, because they would seek the legitimize the illegitimate? Or does it instead merely impugn your preferred Expansive Federal Power view (and speak in favor of LFP) BECAUSE yours works in furtherance of the legal imperialistic control over the continent, its resources, and native peoples, more so than LFP can?

Jeff Schmitt

Anonymous, you seem to think that I am arguing that slavery's association with limited federal powers is a reason for rejecting federalism. That is not what I am trying to say. Instead, I think that originalism--the theory of interpretation--is hard to defend with respect to a constitutional provision that was built on injustice. When I say that I don't think history should be dispositive, I mean that history should not necessarily dictate our constitutional doctrine today. In other words, I don't think the Court should strike down federal legislation today only because the Founders/early Congress/Marshall Court had a limited view of federal power. However, as you suggest, there may be other reasons to preserve a strong approach to federalism.

Moreover, I am not saying that history should be irrelevant to constitutional meaning. When the text is underdeterminate, I think the Court should consider history as well as other factors like shared values, practical results, and basic principles of justice. But, when our history is tainted by constitutional evil, I think it should be given less weight. This is why I argue that Balkin's living originalism is far more defensible for the Reconstruction Amendments than for federal powers.

Anonymous Bosch

Yes, it's obvious what your real target is, Jeff...

The claims you now posit, at any rate, don't track what you state above; indeed, they constitute significant concessions.

On the other hand, those concessions still don't suffice to defend your own view from charges that your own normative stance actually requires one to go much further (i.e., being required to "throw the baby out with the bathwater") precisely because the provisions themselves are built upon injustice, irrespective of which meaning you now wish to affix to them. With that in mind, living constitutionalism (or Balkin's insincere living originalism) are equally indefensible, morally speaking, as they seek to preserve and legitimate those provisions. (This, let alone the fact that those two techniques constitute forms of mystification of the REAL reasons why a particular meaning is, today, selected for a constitutional term or phrase...).

Consider also your "shared values, practical results, and basic principles of justice" factors. In the context of living constitutional analyses, are the first and third EVER predicated upon empirical evidence of their contents? If Americans' values/principles of justice are actually contested, how ought/does the living constitutionalist to proceed...? By cherrypicking her preferred values, her preferred principles, even if those are the minority stances amongst The People?

May I suggest to you that, instead of answering those questions for yourself through the lens of an internal debate between LC and originalism proponents, or between blue team and red team cheerleaders, that you additionally consider the fact (for it is a fact) that a great many constitutional theorists and rule of law defenders outside of the USA consider American constitutional theories of interpretation to be forms of charlatanism, and American LC particularly to be a debasement of the rule of law.

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