A GUEST POST BY ANGUS LANDER

Angus Lander triede to post this as a comment, but Blogger would not accept it, so he sent it to me as an email, and I am posting it here as a guest post, because I think it is quite interesting.

One aspect of the Section 4 debate that touches on a personal preoccupation of mine - the politics of originalism - and so interests me is how it looks like Jack Balkin (Yale), one of the architects of (what you might call) "leftwing originalism," is trying to use it as a testing ground for his (Faustian) efforts to co-opt originalism for the left.

See here: http://balkin.blogspot.com/2011/06/legislative-history-of-section-four-of.html
and
here: http://balkin.blogspot.com/2011/07/more-on-original-meaning-of-section.html

Context: Balkin spent a good bit of the early part of his career thinking about how constitutional ideas (and ideologies more generally) spread and take hold. His view is that a great deal of constitutional law is the product of political mobilizations in favor of (or against) one or another matrix of constitutional rhetoric. Unlike an older generation of constitutional doctrinalists - who believed that constitutional law unfolded from Supreme Court precedent, and so good constitutional lawyering involved careful attention to case law - Balkin thinks that good constitutional lawyering involves cunning manipulation of whatever mode of constitutional "reasoning" is [typically for political reasons] currently ascendant.

Originalism is that mode, so beginning in 2005 Balkin set about using originalist rhetoric to defend the constitutionality of Progressive results. He has so-far written originalist defenses of the right to choose, affirmative action, and the modern sweep of the Commerce Power [including the ACA].*

In 2008 he helped to found the Constitutional Accountability Center - a Progressive think tank cum public interest law firm dedicated to advancing Progressive arguments within an originalist framework - which just recently published a white paper (the first call-to-arms of its kind I know of) explicitly urging Progressives to rally 'round originalism, because, simplistic though its slogans be, it is now hegemonic [and "living constitutionalism" delegitimated]. (http://theusconstitution.org/blog.history/?p=2947)

Obviously I don't know what's inside Jack Balkin's head, but I think his efforts on Section 4 can be seen as an attempt to frame the issue early as a leftwing originalist one, and so to test the effectiveness, and up the profile, of his / the CAC's strategy. (This is possibly what Mark Tushnet means when he says that Section 4 is "the left's Heller" (http://balkin.blogspot.com/2011/07/what-part-of-republican-form-of.html).)

Finally, FWIW, I have mixed feelings about the Balkin / CAC approach. On the one hand, I like watching Balkin beat-at-their-own-game (or at least tweak) the massively dishonest (though some of them do seem to have internalized their own talking points) rightwingers who tirelessly crank away inside the originalist noise machine. And he may well be correct that for Progressives to win the debate over the American constitutional "ethos" one needs to work within originalism (though I do wonder whether it is too late in the day to reinvent our understanding of the American founding as a Progressive moment). On the other hand, originalist rhetoric makes me uneasy because it is so obviously a tissue of fictions,** and also, as an abnegation of our responsibility to think through fundamental moral and political issues for ourselves (or at least a reinforcement of that abnegation), cowardly and repugnant.

* A great account of all this can be found in Northwestern LawProf Andrew Koppelman's
(tongue-in-cheek) article "Why Jack Balkin is Disgusting" (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1506506)

** The best exemplification I’ve come across of what happens when you do originalism seriously is in the early pages of JGA Pocock's The Ancient Constitution and the Feudal Law, where he describes how an originalist movement among Sixteenth Century (mainly) French jurists led them to conclude that the Justinian code was entirely unfit to govern in modern conditions. It is such a good exemplification because of the unimpeachable honesty of it all. The French jurists Pocock describes were, so it seems from his account, honest - they really wanted to figure out how to live by the Justinian code as it was originally understood. And Pockock himself was presumably honest - it's not as if he was writing a covert indictment of modern originalism because, in 1957, that didn't exist!