Jack Balkin's theory of progressive orignalism is one of my very favorite legal topics. Here is my take. Recently, Balkin has been addressing critiques from conservatives. His most recent post is masterly:

Over at NRO, Ed Whelan has offered a series of posts commenting on my exchange with Matthew Franck. . . . Ed makes three key points, each of which is ultimately about the same thing--he wants to restrain judges and leave decisions to the political process. As I explained in my exchange with Matthew Franck, this is all very well and good, but it is in some sense orthogonal to the debate over originalism. In addition, Ed's version of originalism has many of the problems I identified in my original articles.

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Back to law, this is a law blog after all.

Jack Balkin continues his righteous crusade in favor of progressive originalism. Hurrah for Prof. Balkin! His most recent post ties his theory of progressive originalism with the purposes of a Constitution, Our Higher Law:

The American Constitution is far more than basic law in this sense. Americans also view their Constitution as a source of important values, including justice, equality, democracy, and human rights. They view the Constitution’s guarantees as objects of aspiration; the Constitution either offers or refers to a standard that stands above ordinary law, criticizes it, restrains it, and holds it to account. Fidelity to the Constitution requires that we aspire to something better and more just than the political, social and legal arrangements we currently maintain. Hence the Constitution trumps ordinary law not simply because it is legally or procedurally prior to it, but because it represents important values that should trump ordinary law, supervise quotidian acts of governmental power, and hold both law and power to account. Thus, we say that the Constitution is not merely basic law, it is also higher law; that is, it is a source of inspiration and aspiration, a repository of values and principles.

. . . [I]t is not enough that the Constitution serve as basic law– a framework for governance, or as higher law– a source of aspirational standards and values. It must also be our law. The people who live under it– the American people–must understand the Constitution as their law. . . . The Constitution works as our law when we identify with it and are attached to it, whether or not we consent to it in any official or legal sense. The Constitution works as our law when we view it as our achievement and the product of our efforts as a people, which simultaneously involves a collective identification with those who came before us and those who will come after us.

. . . The method of text and principle, I believe, serves the multiple functions of a constitution – as basic law, higher law, and our law– far better than other forms of originalism. An originalism that strongly distrusts delegation to future generations and demands that open-ended provisions must be closely connected to original expected application is defective in all three respects. That kind of originalism makes the most sense if we think of the Constitution only as basic law. It tries to turn open-ended principles and standards into something more concrete and rule-like, something whose effects will hopefully be more predictable and (in many cases) more constraining. But that is not the only way that constitutions could serve as basic law. Constitutions can also channel and give incentives for political stability and adaptation rather than merely block and constrain decisionmaking. In fact, the former is a far better way to understand the basic law function of a constitution. . . .

Please read the entire post. It is a stirring vision of progressive Originalism and how such an approach aggrandizes Our Constitution.

Jack Balkin returns to the issue of originalism and why progressives should embrace it:

Doug Kendall and Jim Ryan's essay in the New Republic makes the eminently sensible point that progressives should stop viewing originalism as the enemy just because they have come to associate it with people they disagree with politically. Instead, they should recognize that originalism is the right approach for progressives as well as conservatives . . .

It's important to remember that before Antonin Scalia and Clarence Thomas, there was Hugo Black, one of the great liberal defenders of the Bill of Rights, who made originalist arguments for the positions he took. Originalism is not the interpretive philosophy of stand patters. It is the philosophy of people who want to restore and redeem the Constitution's promises in a world where they have been forgotten or disrespected. . . . If liberals think that the current generation of conservative judges have hijacked the Constitution and twisted its meaning, they shouldn't respond by callling for a counter-hijacking. Rather they should follow the example of Hugo Black. They should call for a return to first principles, to the best interpretation of the Constitution's original meaning and underlying values. They should be originalists once again.

Many progressive scholars avoid these conclusions because they know that life is change. They are worried that originalism means giving up the idea of a living constitution-- a constitution that adapts to changing times. Nothing could be further from the truth, as I have explained here and here. Properly understood, fidelity to original meaning and living constitutionalism are not opposed positions. They are two sides of the same coin.

Indeed. I have agreed with Professor Balkin on this point for a while, most notably here.

This history deeply influenced the framing of our Constitution:

Charles [I of England] had inherited disagreements with Parliament from his father, but his own actions (particularly engaging in ill-fated wars with France and Spain at the same time) eventually brought about a crisis in 1628-29.

. . . Tensions between the King and Parliament centred around finances, made worse by the costs of war abroad, and by religious suspicions at home. . . . In the first four years of his rule, Charles was faced with the alternative of either obtaining parliamentary funding and having his policies questioned by argumentative Parliaments who linked the issue of supply to remedying their grievances, or conducting a war without subsidies from Parliament.

. . . Charles had to recall Parliament. However, the Short Parliament of April 1640 queried Charles's request for funds for war against the Scots and was dissolved within weeks. . . .

Many TalkLeft readers will be interested in Unchecked and Unbalanced: Presidential Power in a Time of Terror by Frederick A. O. Schwarz Jr. and Aziz Z. Huq. According to the NY Times review:

[T]he book serves as a valuable compendium and chronicle of the Bush administration’s aggressive efforts to expand the power of the executive branch, providing a detailed account of the unilateral actions it has taken on matters ranging from torture policy to domestic surveillance, and it is necessary reading for anyone interested in how those efforts by the Bush White House have tipped the constitutional system of checks and balances.

When I was in law school, a discussion of the Equal Protection Clause dedicated great deal of focus on footnote 4 in U.S. v. Carolene Products:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. [cites omitted] It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. . . . Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious,[cites mitted] or national, [cites omitted], or racial minorities. [cites omitted]; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. . . .

(Emphasis supplied.) More.

Or so says Chief Justice Roberts in Morse v. Frederick. Justice Stevens' dissent is wonderfully mocking:

It is also perfectly clear that “promoting illegal drug use,” ante, at 14, comes nowhere close to proscribable “incitement to imminent lawless action.” Brandenburg, 395 U. S., at 447. . . . No one seriously maintains that drug advocacy (much less Frederick’s ridiculous sign) comes within the vanishingly small category of speech that can be prohibited because of its feared consequences. Such advocacy, to borrow from Justice Holmes, “ha[s] no chance of starting a present conflagration.” Gitlow v. New York, 268 U. S. 652, 673 (1925) (dissenting opinion). . . .

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The Supreme Court has handed down its decision in Hein v. Freedom From Religion Foundation, ruling that Flast taxpayer standing for Establishment Clause violations does not extend beyond a challenge to specific Congressional appropriations to discretionary Executive expenditures.

The opinions are very interesting at first blush. Justice Alito, joined by Chief Justice Roberts and Justice Kennedy, opine that Flast was directed very specifcally at Congressional action and that allowing challenges to discretionary Executive expenditures was too attenuated to provide standing. Justice Scalia and Thomas, in concurrence, argue that Flast is bad law and should be overruled. Interestingly, they argue that there is no basis for distinguishing taxpayer challenges to Executive expenditures from taxpayer challenges to Congressional appropriations as the harm is the same to the taxpayer. Nonetheless, even though Flast remains good law after Hein, the result in the case is the same.

The dissenters, Stevens, Souter, Ginsburg and Breyer, believe Flast is good law, and like Scalia and Thomas, believe that Hein can not be distinguished from Flast. They also point to Bowen v. Kendrick, as the case controlling the result in Hein. I'll add to this post later as I get a chance to read the opinions more closely.

In some ways, the uproar over Presidential signing statements is overblown. Sometimes, Presidential signing statements can effectively allow a law to be enacted with the President making a Constitutional reservation regarding any concession of impact on Executive power caused by future interpretations of the law. However, as used by the Bush Administration, signing statements have been invidious extraconstitutional actions:

Federal officials have disobeyed at least six new laws that President Bush challenged in his signing statements, a government study disclosed yesterday. The report provides the first evidence that the government may have acted on claims by Bush that he can set aside laws under his executive powers.

This is the problem. The President can not uniltaerally choose to not enforce a provision of law based on his claim that the provision is unconstitutional. The President must veto such law. He does not have the power of line item veto in any respect, much less within one law.

Catcher in the Rye, Huckleberry Finn, and the Harry Potter novels regularly appear on lists of banned books, but the Miami-Dade County School District has extended its censorial reach to "Vamos a Cuba" ("A Visit to Cuba"), "a children's book that critics contend glorifies life in Fidel Castro's Cuba."

The board - supported by members of the Miami-area's influential Cuban-American community -believes the English and Spanish book is inaccurate and fails to address Castro's communist government.

Instead of pulling the book from school libraries, why not add books that describe Castro's Cuba from a competing perspective? Aren't schools the ideal place to test the marketplace of ideas?

The Eleventh Circuit will decide whether the school board was entitled to remove the book.

Speaking of habeas corpus, mcjoan at DailyKos updates the status of S. 185, the Habeas Corpus Restoration Act. Check the list of senators who need to hear from you.

Professor Jack Balkin continues his fascinating discussion of Professor Bruce Ackerman's theory of Constitutional Moments.

I may be the only person here interested in this, but I still feel it mandatory to link it for you.

My previous discussions on this can be found here and here.