In my previous post, I noted that Jack Balkin had argued that liberal constitutional theorists are likely to adopt more activist constitutional theories if Justice Scalia’s vacancy is filled by a liberal justice. I argued that this would be improper, as it would involve the constitutional theorists engaging in strategic behavior rather than a principled approach.
Jack has written a response, claiming that I had misinterpreted him to be endorsing this change rather than simply predicting it would occur. While I am not sure that this was entirely clear in his post, if Jack says that is what he meant, then I am willing to accept it.
While we are on the subject of misinterpretations, I should note that Jack interprets me as claiming that he and other liberal theorists actively support this strategic, bad faith approach. But to begin with, I never said anything about Jack engaging in such strategic behavior. I merely said that he was acknowledging that his liberal brethren were engaging in it. In other words, even liberals were admitting that other liberals were engaging in strategic behavior. That is different than saying Jack was advocating it.
But putting to the side what Jack was saying, my post was not entirely about Jack. I also noted that Dick Fallon had advocated adjusting one’s constitutional theory based on changing circumstances. Thus, Jack cannot deny that a very highly respected liberal constitutional theorist actually recommends engaging in this practice, although Dick does note its dangers.
Jack’s post covers a significant amount of ground, and so I can’t comment on all of it. But there are three points I’d like to make. First, Jack discusses the issue of individuals changing their views. I certainly don’t want to condemn all such changes. While I have been pretty consistent in my views since entering the academy, I have changed on some matters and I am proud of those changes, not ashamed of them. But not all changes are equally praiseworthy. It is one thing to change your mind because you believe you were wrong as a matter of accuracy or principle. It is another to change in ways that support your agenda. For example, one can certainly legitimately change one’s mind about the desirability of the filibuster. But when you support the filibuster when you are in the Senate minority and then oppose it when you are in the majority, you are open to the charge of being strategic and unprincipled. Perhaps some people in this situation are not being strategic, but a self aware individual would recognize that their change in position is very convenient.
Second, Jack suggests that matters differ when it comes to consistency across generations. Younger liberals are not responsible for the positions of older liberals. Each generation must make up its own mind, based on its own experiences. There is much to be said for this, but being from a different generation does not excuse inconsistency. In my previous post, I noted that liberal New Dealers dispensed with economic liberty on judicial restraint grounds, but then the liberal Warren Court (and the Burger Court) embraced sexual privacy, despite its activism. The Warren Court was not responsible for the New Deal, but it was responsible for the inconsistency of embracing Roe (technically a Burger Court case), but rejecting Lochner. Modern defenders of precedent based approaches who say little about the New Deal’s radical change in constitutional law are equally open to the charge of inconsistency.
Finally, Jack notes that the charges of inconsistent strategic behavior might be leveled against conservatives. Yes. When conservatives are strategically inconsistent, they should be criticized. That said, I’m not sure that I agree with the example that Jack provides. He argues that conservative theory has moved from a judicial restraint view, when conservatives were a minority, to a more judicial engagement view that is more activist. If conservatives did this strategically, then they would be subject to criticism. But I’m not sure if, and if so, to what extent, they have. For what it is worth, my own view about these matters – enforce the original meaning without a bias for restraint or activism – has not changed since at least the 1980s. Jack mentions Randy Barnett’s defense of judicial engagement, but in Randy’s case, his conversion to originalism suggests the opposite of what Jack suggests. Randy was a nonoriginalist libertarian before moving to an original public meaning version of originalism. If anything, his conversion to originalism would have limited his ability to enforce his preferred views, not enhanced it. More generally, most of the people advocating judicial engagement are libertarians who have long had a more activist approach to constitutional adjudication.