Sunday, May 03, 2020

repeat from 2003
Jack Balkin is still arguing with Larry Solum on the subject of Constitutional change.
Solum refers to himself as a "neoformalist" and lays out some principles as to what that description means. That's all well and good, but he's talking to others who are not neoformalists. And there are plenty of others of various other persuasions who are involved in debates on the same subject. In this case a neoformalist is debating a hybrid historicist textualist social constructivist liberal. Never mind how change should happen, how does it happen? What are the terms of the debate they are already having? We need a little less theorizing and a little more sociological observation. Balkin understands this; after all I think it fits in with his philosophy, but Solum seems not to, and is simply trying to invent ways to justify his moral conservatism with a veneer of logic. But if history is anything other than repitition, it's dialectics. As a simple matter of fact, Solum's ideals, even if they come and go in popularity, simply fail as a description of why they do so.
I think this is when I emailed Balkin telling him he was always far too polite, and he replied defending honey over vinegar.  11 years later we got "Why are Americans Originalist?" and Kill'em with Kindness, all too coy by half.

Now we get a symposium on this.
The Partisan Republic is the first book to unite a top down and bottom up account of constitutional change in the Founding era. The book focuses on the decline of the Founding generation's elitist vision of the Constitution and the rise of a more 'democratic' vision premised on the exclusion of women and non-whites. It incorporates recent scholarship on topics ranging from judicial review to popular constitutionalism to place judicial initiatives like Marbury vs Madison in a broader, socio-legal context. The book recognizes the role of constitutional outsiders as agents in shaping the law, making figures such as the Whiskey Rebels, Judith Sargent Murray, and James Forten part of a cast of characters that has traditionally been limited to white, male elites such as James Madison, Alexander Hamilton, and John Marshall. Finally, it shows how the 'democratic' political party came to supplant the Supreme Court as the nation's pre-eminent constitutional institution.
Jud Campbell, sends us here.
Federalist 37  [Madison]
All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.
We need a history of justice.

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