Prelude Northbound on Interstate 15, South of Barstow. Late afternoon. I am driving to Las Vegas on a sad and personal errand. I don’t know about you, but when I do long distance driving my mind wanders. My dad. A Seinfeld episode. Blogging. The Internet. The Matrix. And before I know it, I’m thinking about The Matrix Reloaded and a how it gives new meaning for the phrase "special effects." Surprised at myself, I find that I am sympathizing with Agent Smith. What a pain Neo is. Smith plans and prepares, but no matter what how meticulous his plans may be, Neo always has a counter move, an evasion, an exit. No matter how quick Smith is, Neo is always faster. Neo has lost his grip on the apparent reality of the matrix, and so the matrix has no grip on Neo. And that reminds me . . .
Neoformalism versus High Politics . . . and that reminds me that I need to reply to the latest post by Jack Balkin, the Neo of contemporary legal theory. Balkin is one of the mater tacticians of legal argument–he always has a move, a distinction, an argument, a slide, a theory. Our exchange grew out of a column by Edward Lazarus on the virtue of judicial integrity. Although quite critical of Lazarus’s critique of a dissenting opinion by Alex Kozinski, my post, Judicial Integrity, Legal Realism, and the Second Amendment: A Commentary on Lazarus and Kozinski, argued that the virtue of justice is essential to judicial integrity and that this virtue requires fidelity to law–following the rules laid down. To cash out the notion of fidelity to law, I gestured toward a neoformalist theory of constitutional adjudication that emphasized precedent, text, structure, and history (in that order) as the guideposts for the decision of constitutional cases. Jack Balkin responded in a post entitled Good Judging and "Following the Rules Laid Down.", taking me to task for the implications of neoformalism with respect to the Supreme Court’s equal-protection gender-discrimination jurisprudence. Jack argued that these cases could not be justified by the precedents, the text of the equal protection clause, or by the original meaning of the Constitution. They could only be justified by a picture of constitutional interpretation that makes "high politics" a legitimate basis for constitutional decision. Nonetheless, Balkin argued, high politics is law. I countered in a post titled A Neoformalist Manifesto, elaborating with a fuller sketch of a neoformalist theory of constitutional adjudication and arguing that high political constitutional decision making would undermine the rule of law. Balkin has now replied in a post entitled Good Judging and "Following the Rules Laid Down," Part II. So now it’s my turn.
First Interlude Northbound on Interstate 15, North of Barstow. Before dusk. There it is on the left. Calico. A ghost town. And today, of all days, I am thinking of ghosts. Memories flash. I'm a small boy exploring a ghost town with my father. I am hunting for hidden gold and watching out for the ghosts. I blink and I'm back on the Interstate, but the ghosts are still with me.
Constitutional History and the Ghosts of Theories Past The ghosts of constitutional history are still with us. Contemporary jurisprudence is haunted by Lochner and the mythical switch in time that saved nine. By footnote four and Brown v. Board of Education. By Henry Hart and Alexander Bickel. By Miranda and Baker v. Carr. By Griswold and Roe. So much history. How are we to reconcile the New Deal critique of the Supreme Court with the great decisions of the Warren and Burger Courts? Why is Lochner wrong and Roe right? Why defer to Congress on issues of federalism but not on the freedom of speech? Theories come and go. John Hart Ely’s Democracy and Distrust. Laurence Tribe’s multi modeled American Constitutional Law. Ronald Dworkin’s Forum of Principle. Bruce Ackerman’s We the People. Sandy Levinson and Jack Balkin’s High Politics. Much changes, but some things stay the same. Paul Brest inters originalism in The Misconceived Quest for the Original Understanding. Everyone agrees that Lochner was wrongly decided. Warren gives way to Burger gives way to Rehnquist. And we are still at it, but the game has changed. Originalism rises from the ashes, and serious scholars write in defense of Lochner. Lopez and Morrison. And then there is Bush v. Gore. So many ghosts.
Second Interlude Baker, California. Dusk. Baker is a dry desert town, which has only one claim to fame--the world's tallest thermometer. I am at an intersection. I could turn left. I look down the road. Lot's of folks have stopped at the Denny's. I could turn right. Big crowds at Bun Boy and the Mad Greek. Which way? And then I see another way. What looked like a driveway is a narrow street . . . no, a highway, California 127, the road to Death Valley. I decide--neither left nor right. I leave the bright lights and crowded restaurants behind and proceed through the intersection, straight ahead. In a just a few minutes, I am utterly alone.
The Case Against Neoformalism In his most recent post, Balkin makes the normative case against neoformalism. Last time, Balkin used the Supreme Court’s gender-discrimination equal-protection decisions as his normative club, arguing that these decisions were inconsistent with the precedents, the text, and the history, and therefore could only be justified by accepting that constitutional law is high politics. I was forced to bite the bullet. Yes, gender equality is important, but no, judicial fiat wasn’t the only way to get there. Now Balkin steps up his attack. Here are his moves:
A Feint Balkin’s first move is a feint. He is trying to get me off my guard. In response to my biting the bullet, Balkin writes:
It follows from this that Larry does not, in fact, think that the states and the federal government should be *constitutionally* prohibited from discriminating on the basis of sex. He believes that sex equality is wrong, but that it should be up to individual states, and to the U.S. Congress to pass laws and issue regulations prohibiting sex discrimination.
Jack is waving his red cape, hoping I will charge. Of course, from the fact that Balkin believes that the Supreme Court’s gender equality decisions could not have been justified by the constitutional precedents, the text of the equal protection clause, or the historical evidence of original meaning, it does not follow that I believe that there should be no constitutional prohibition against gender discrimination. First, this move confuses "is" with "ought." My post suggests what I will now make explicit: I support the Equal Rights Amendment. Second, as Balkin later admits, I believe that the gender equality decisions should be followed, because of my strong commitment to the doctrine of stare decisis.
The Tender Mercies of Legislation Now comes Balkin’s real argument. Because it is completely fair for Balkin to ask, "What if your theory had been in place forty years ago? What then?" This is the way he puts it:[Solum] believes that sex equality is wrong, but that it should be up to individual states, and to the U.S. Congress to pass laws and issue regulations prohibiting sex discrimination. But I think this misses the point at issue: Should the principle of sex equality be part of our basic law, our fundamental rights, so that one does not have to get legislation passed in order to secure basic rights for women? One might well have said the same thing in Brown v. Board of Education: let each state decide whether it wants to keep Jim Crow or abolish it; let Congress decide whether it wants to ban segregation in the D.C. schools, or not, and so on. I guess one could take that position with respect to almost every important civil right that doesn’t fall within Larry’s neoformalist vision of judging. But my point is that if so, this seems to me at least, to be a serious criticism of his position. I don’t think it would be sufficient to leave the question of sex equality, or race equality, for that matter, to the tender mercies of indvidual states.
The feint almost worked. It diverted my attention for a moment. I am tempted to point out that Balkin is mischaracterizing my position, but then it starts to sink in. After I pointed out that I would, in fact, endorse constitutional prohibitions against race and gender discrimination, Balkin would pounce. Because my theory does commit me to the position that many of the Warren Court decisions on these topics were badly reasoned and that some of them were wrongly decided. And even if I were able to salvage a good deal of the Warren Court legacy with subtle or heroic argument, Balkin could slash through that elaborate tissue of defence with a single hypothetical: But what if the precedents, text, and history did not permit those maneouvers? What then? But it gets worse. Balkin continues:
[Solum] may well think that he can bite the bullet on the sex equality question. But the sex equality example was only one example. What [Solum] does not sufficiently recognize, I think, is that the number of Supreme Court decisions that are not consistent with his model of neoformalist judging are plentiful. Indeed, I would venture to say that there is hardly an area of contemporary civil rights law in which the key precedents protecting civil rights and civil liberties were originally developed consistent with [Solum]’s formula for good judging. Rather, the history of progress in civil rights in this country is the history of courts artfully dodging and sometimes overruling previous precedents, and creatively crafting new doctrinal structures in their stead, often with nary a concern for "plain meaning," structure, or original understanding. The list of cases that were decided in ways inconsistent with [Solum]’s rather narrow conception of good judging is so long that I can’t even begin to list them all, but here’s a partial sample: the basic doctrines of the scope of free expression, the rule of strict scrutiny for content based regulations, the rule of Brandenburg v. Ohio protecting seditious libel, the contemporary protection of blasphemy and indecency, the public forum doctrine, the rule of New York Times v. Sullivan, the doctrine of freedom of association, the doctrines prohibiting unconstitutional conditions on speech, the constitutional recognition of picketing as a form of protected expression, and that’s just the first amendment doctrines that come readily to mind.
And now, I am literally sweating. And Balkin goes on and on, pouring on the examples, arguing that the whole Warren Court legacy is indefensable on the basis of precedent, text, and history. Now Balkin is surely exaggerating, because many of the Warren Court’s decisions were quite conventional–relying on precedents, constitutional text, and evidence of original meaning. But Balkin’s exaggerations are of no help to me. Because Balkin is surely right about many of the Warren and Burger Court’s important decisions. We all know that. That’s why I am sweating. Balkin has me in a corner. My theory would have led to unthinkable consequences had it been followed from 1954 through the late 1970s, whereas Balkin’s theory fits and justifies the key decisions that constitute the legacy of the Warren and Burger Courts. Think! There must be some way out of this. Why would anyone with a conscience leave such important issues to the tender mercies of legislators when they could be secure in the hands of the Justices of the United States Supreme Court? Rivulets of ice cold sweat are pouring down my back.
Balkin’s Ingenious Argument But then it hits me. Balkin’s argument rests on a very clever rhetorical trick. Balkin and I are debating constitutional theories: High Politics versus Neoformalism. Balkin’s argument is that high politics guarantees outcomes that seem highly desirable (gender equality, racial equality, and all the rest), whereas neoformalism must rely on the tender mercies of the political process. His evidence is that his theory endorses the methods and outcomes reached by the Warren and Burger Courts, whereas my theory does not. Balkin concedes political processes might have reached these same results through ordinary legislation or constitutional amendment, but, . . . and this is the crucial move, so watch carefully . . . but that is just too risky–because ordinary politics might fail. Who knows what would have happened if the Warren Court hadn’t pursued the agenda of high politics? But this argument is a sham. It is audacious but atrocious. Because there was no guarantee that high political judging would produce the results that it did. It was an accident of history that Earl Warren was appointed Chief Justice. And that Bill Douglas was already on the Court. And that Eisenhower appointed William Brennan. And that Kennedy rather than Nixon won (or stole) the razor-close election of 1960. Balkin is comparing our ex post knowledge of how the Warren and Burger courts turned out with a hypothetical ex ante assessment of how things might have gone if the Warren Court had operated on the basis of a neoformalist constitutional methodology. And when Balkin makes the comparison, he assumes certainty for the ex post evaluation and notes the lack of certainty from the ex ante perspective. In other words, he is playing with a loaded deck.
And here is the counter move that sinks Balkin’s argument. So let’s make another comparison, this time ex ante to ex ante. It is 2003. We have an ideologically conservative Supreme Court–some would say the majority of the Court is on the extreme right. Suppose you share Jack Balkin’s politics and you have a magic wand. You can wave it up and down, and all nine justices will become true believers in the high politics theory of constitutional interpretation, but they will retain their own political orientations. Rehnquist, Scalia, Thomas, Kennedy, and O’Connor will all become true believers in the proposition that they ought to decide cases in accord with their high political ideology. Or you can wave your magic wand from side to side, and all nine Justices will become neoformalists–looking first to precedent, then to text, and finally to historical evidence of original meaning. Which way would you wave? I know, I know. This isn’t a fair comparison either. And that is precisely the point–the glory point. Neither Balkin’s comparison or mine provides a meaningful comparison of the long-run effect of adherence to our respective constitutional theories. A meaningful comparison can’t start with a jury rigged description of particular historical circumstances. If we are going to ask the question, "which constitutional theory will produce better results?," we need to ask that question over the long haul, not at a particular point in time. Once we reframe the question in this way, it becomes clear that our best evidence is to be gleaned from comparative constitutional practice. When we compare our constitutional system with comparable polities, the United Kingdom, Canada before and after the Charter, and so forth, then we can see that Balkin’s argument is quite simply a colossal failure. One just can’t make out the case that realist constitutional jurisprudence is essential to the realization of human liberty and equality. Moreover, if we look at the long run of American constitutional history, it is very difficult to make out the argument that federal judges or Justices of the Supreme Court are reliable. Indeed, Balkin’s own argument shows that this is not the case. Balkin’s rhetorically clever argument against neoformalism began with the premise that Supreme Court Justices before the Warren Court had made bad decisions that would have bound the Warren Court if it had adopted a neoformalist methodology. In other words, pre-Warren, we were at the tender mercies of a Supreme Court whose high politics provided no guarantees of liberty or equality–at least according to Balkin. Thus, Balkin’s own premise shows that over the long haul, putting the awesome power of ideological judging in the hands of Supreme Court Justices leaves us at the tender mercy of a shift in the high political winds. I can breathe again.
Am I Having My Cake and Eating It Too Having dodged that bullet, I immediately face another. Balkin continues:
If I am correct about all this, then there is an enormous irony to Larry’s theory. For despite all of these criticisms, Larry can in fact have his cake and eat it too. He can point out that judges should follow the sex equality cases, the cases broadening the scope of Congressional power, the cases legitimating the administrative state indeed, the whole panoply of cases that I have just pointed to, because they are *already decided,* and judges must follow stare decisis. But here is the irony: The only reason that these things are law now, and that judges must follow them, is because other judges in the past who Larry thinks didn’t know how to do their jobs properly violated their oaths of office and inserted these travesties into constitutional law. So Larry’s theory commits him to the following paradoxical position: He doesn’t have to defend a deeply unjust and unworkable constitutional scheme because other judges in the past didn’t follow his advice about what constitutes good judging and inappropriately mixed law and politics in the very ways he accuses me of. And that paradox, I think, suggests that there is something deeply wrong about his theory of judging. He is like a man who is living off the proceeds of stolen goods.
This is a serious charge. Essentially, Balkin argues that I have engaged in intellectual theft. I have not earned the Warren Court legacy. And he is right. I haven’t. I don’t claim that I have. My case for neoformalism did not rest on the fact that it preserves decisions that I believe are good on the basis of my own political beliefs. From my perspective, my politics are only marginally relevant to the topic at hand, but Balkin has put them on the table. So I need to say a bit more. My own attitude toward the Warren Court legacy is ambivalent. Many cases have outcomes I applaud and rationales I can endorse. Others have outcomes I like, but rationales that need considerable fixing. Others have good outcomes, but cannot be fixed. Miranda is one of these. From my perspective, it is regrettable that the rule of law requires that Miranda be eroded only gradually, by the traditional formal methods. Miranda warnings are probably a good thing, but their imposition by judicial fiat was one of the great errors of the Warren Court. Of course, the doctrine of stare decisis applies to Rehnquist Court decisions as well. I think Hans v. Louisiana and Seminole Tribe were constitutional mistakes, but neoformalism requires that they be followed despite my antipathy. I could go on, with example after example, but here is the point. I am willing to take the bitter with sweet. Who knows how deeply we see into our own souls. All I can say is that from where I stand, I cannot say that Jack Balkin has seen deeply into mine.
The Ratchet Balkin finds it ironic that a neoformalist would endorse a muscular version of the doctrine of stare decisis. I must confess that when I put Balkin’s powerful rhetoric to the side, the irony escapes me. Of course, a legal theory constructed to realize the rule of law will place great weight upon the rules laid down. Formalism and stare decisis, like love and marriage, go together like a horse and carriage. But Balkin’s objection has a flip side, which is much more serious. Of the many emails that I’ve received about A Neoformalist Manifesto, the most critical have come from the right, and they have emphasized the ratchet. Most of you already know about the ratchet, but for those don’t, here’s the way the argument goes. When realists rule the roost (i.e. have a majority on the Supreme Court), they make realist decisions–shaping the constitution around their personal political ideologies. Now suppose that a formalist majority is appointed to the Court, and that these formalists adhere to the doctrine of stare decisis. They will follow the realist decisions of the predecessors, but decide open questions of law on the basis of the constitutional text and historical evidence of original meaning. Now the pendulum swings again. The realists come back in. They can overrule the formalist decisions, because they don’t believe in stare decisis. If this cycle continues, we have a ratchet. Sometimes to make the point perfectly clear, people use the redundant phrase, "one way ratchet." After each realist/formalist cycle, the constitution moves further in the realists’ preferred direction. There is something to the ratchet. But ultimately, this argument fails. The rule of law cannot be realized by conceiving of the practice of judging as a war–to be won by one side or the other. The rule of law requires cooperation, and cooperation requires trust. A selective doctrine of stare decisis, which enshrines the good decisions and rejects the bad ones will not foster the depoliticization of the judiciary. Quite the opposite. Such a practice is likely to reinforce the perceptions that avowedly formalist judging is really realism in disguise and that the rule of law is a flag of convenience. The rule of law requires a heavy price from both left and right. Stare decisis is on the bill, and the goods will not be delivered if the price is not paid.
Neither Left nor Right And so I find that I can turn neither left nor right. On the one hand, I find that I cannot endorse the reasoning of many of the Warren Court decisions. It is tempting. Certainly, there is cover. One can always slip on the coat of law as integrity or don the fedora of a New Deal constitutional moment. And even if one suspects that these garments are the emperor’s new clothes, one can take comfort in the company one keeps. On the other hand, I cannot endorse a neoformalism that incorporates textualism and originalism but leaves out the doctrine of stare decisis. There is temptation on that path as well. There may be fewer at the party, but the companionship is all the warmer when one is a member of the brave few. Neoformalism is a lonely road. I have been going that way for a while, and if you are like me, you know that there is not much company. Balkin thinks that neoformalism is the easy path, but he does not see beyond the first curve in the road.
Third Interlude California Highway 127, Twilight. As the light fails, whites, reds, and browns fade to gray. This really is a lonely road. No one heading south. No one heading north. Not even an old homestead on the side of the road. I listen to old-time radio--a complicated murder story. Edward G. Robinson is a professor who gets involved in a murder somewhere out in the countryside. It makes me nervous. The signal fades, and I am truly by myself. Random memories succeed, one upon another. Childhood. My sister's room. Her favorite book. Humpty Dumpty:
The Defense of High Politics In theoretical debates, you have to play both offense and defense–although as the saying goes, the best offense is . . . So I am not surprised the Balkin focused on what he saw as the weaknesses of neoformalism and avoided most of what I said about high politics. In particular, Balkin had little to say about my most serious argument–that constitutional decision according to high politics is not decision according to law. And as a consequence, high politics is not cure for the downward spiral of politicization that threatens the rule of law. But he says enough for me to move the ball forward. Here goes.
Balkin’s Big Move But Balkin did have something very important to say in reply. Here it is:
Now, there’s another very important side to Larry’s post, and it has to do with he thinks are my own views about judging in constitutional cases. Larry thinks that what I am advocating is simple lawlessness, that I am saying that ultimately it’s all politics. He is mistaken about this, and he misreads me in large part because he has too narrow a view of what *legal* argument is. I must confess I don’t recognize his theory of neoformalist judging in the actual practices of lawyers and judges in America. My view of legal argument is simply more flexible than his, that’s why he jumps incorrectly to the conclusion that I think it’s all just politics. But I think that history of the practice one is arguing about counts for something. And the more one studies the actual history of the practices of legal argument about the U.S. Constitution, and the ways in which our Constitutional law has actually developed, the more one discovers that these practices are much much more flexible that Larry’s model of good judging permits. A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can’t be correct. But that discussion will have to wait for another post.
If you read my last post closely, you will realize that Jack has made exactly the move that I predicted he would. I offered neoformalism as a normative theory. Balkin is arguing that neoformalism is inadequate as a descriptive theory of constitutional practice. And once again, Balkin exaggerates. Precedent, text, and history are the bread and butter of ordinary constitutional argument. Indeed, once you think about it, you will realize that Balkin faces some important obstacles if he wants to make out the claim that high politics provides an adequate account of the practice of constitutional adjudication from the internal point of view. It is an embarrassment for Balkin that the Supreme Court almost never says anything about "high politics" in its opinions. In fact, if you read the opinions, they almost all pay homage to formalist constitutional methodology. But Balkin has an out. He can say that this is all window dressing. Balkin tells us that if we were at the conferences, we would learn that the Justices are very much in the high political mode when they deliberate. And even if they were more circumspect in conference, Balkin would still have a perfectly good move left. Balkin can argue that only high politics can really explain the decisions of the Warren Court. And while that claim is exaggerated, it surely contains much truth. It is a commonplace of conservative criticism of the Warren Court legacy that many of the Court’s decisions were essentially political in nature.
Is High Politics Law? Oh oh. It looks like Balkin is on to something. When Balkin says "I think that history of the practice one is arguing about counts for something. And . . . these practices are much much more flexible that Larry’s model of good judging permits," he looks to be making a sound move. Indeed, he is making the kind of Wittgensteinian move that allowed H.L.A. Hart to get the whole enterprise of contemporary analytic jurisprudence off the ground. How can I say that high politics is not law? Do I really think that Miranda isn’t law? And not just Miranda, but a whole hose of Warren and Burger Court decisions? But of course, that is not what I am saying. My claim wasn’t that decisions made on the basis of high politics are not law. Miranda is still good law. In fact, given my view of stare decisis, it not only is law, it should remain law. If that is what Balkin’s argument amount to, then it is simply nonresponsive. So what else could Balkin mean?
Is Decision on the Basis of High Politics Decision on the Basis of Law? So Balkin must be making a more ambitious claim. Perhaps he is arguing that decision on the basis of high politics is decision on the basis of law. If this is his claim, then is his argument valid? Obviously not. If we were to discover that from 1872 through 1897, the Supreme Court decided many constitutional cases on the basis of a flip of a coin, those decisions would still be law. No question about that. But would they be decisions made on the basis of law? Well, no. So are decisions on the basis of high politics decisions on the basis of law? In order for that to be the case, Balkin would need to claim that the political ideologies of Supreme Court Justices are law. But now his own argument turns against him. Because the practice is not to treat the ideologies of the justices as law. Put aside the practical problem that the various Justices have complex ideological views that do not easily sum into a single coherent whole. Even if there were something that we could call the high political ideology of the Supreme Court, it isn’t law. Only those portions of the ideology that have been translated into decisions are law. OK. Perhaps that is what Balkin means? But again, no, for two reasons. First, this would mean that the first decision to embody a particular ideology was not based on law. Second, the decisions are nothing other than the precedents, and if Balkin has made anything clear it is that he is claiming that decision according to law is not limited to decision according to precedent. And so? And so, Balkin cannot make out the claim that decision on the basis of high politics is decision on the basis of law.
Is Decision According to High Politics Legitimate? But perhaps Balkin misspoke or perhaps I have misinterpreted him. Because if we look closely at his argument, we find that this is the conclusion: "A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can’t be correct." A ha! Why didn’t I see this before. Now I think I get what Balkin is up to. And I’m worried. Very worried. Because Balkin has just made one of the most famous (and famously slippery) moves in all of contemporary jurisprudence. This is Dworkin’s Patented Triple Action Is to Ought Super Slide. Here is how it works. Step One: To understand a practice, we must take the internal point of view–looking at the practice from the inside. Step Two: Once inside, we must interpret the practice to be the best that it can be. Step Three: Having interpreted the practice from the vantage point of Step One according to the criterion provided by Step Two, it follows that the practice cannot now be regarded as illegitimate. Damn. I’ve come so far. I thought I had Balkin, but now, at the very end, he pulls a Dworkin on me. What I am supposed to do now. I could Raz Balkin, but there is no way to Raz someone in a blog. It takes way too long. I’m just going to have to let him get away with the Dworkin, but get around it somehow. But how?
The Implications of the Interpretive Turn So what are the implications of Balkin’s interpretive turn? What happens if we accept Balkin’s assertion that "A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can’t be correct." Hmm. This seems to translate into, any feature of the practice of judging that is so pervasive that it accounts for much of the history of the practice is legitimate. Whoa! That has interesting implications. I can feel a reductio coming on, but that would be taking a cheap shot. Here is a more elegant piece of argumentative ju jitsu. Balkin’s interpretive turn commits him to the proposition that neoformalism is legitimate if the history of the practice of constitutional adjudication includes a great deal of neoformalism. Now Balkin keeps denying that this is the case, but it takes only a moment’s reflection to realize that he couldn’t really have meant that. Of course, an awful lot of the ordinary run-of-the-mill constitutional decision making (even by the Supreme Court) is neoformalist. Courts follow constitutional precedents all the time. And that means that neoformalism is, according to Balkin, a legitimate method of constitutional adjudication. Given that two methods of constitutional adjudication are "legitimate" in the sense that they are "much of the history of the practice" of constitutional adjudication, does it make sense to ask the question, should we use both of these methods or is one better than the other? Well, yes. That is a perfectly sensible question. And that brings me round to the arguments I made in A Neoformalist Manifesto, arguments that Balkin has yet to answer. The rule of law provides a very great good. High political constitutional adjudication threatens the rule of law. Neoformalism preserves it.
Gonzo Jurisprudence But before I close, I must tell you that I find Jack Balkin’s work to be amazing, stimulating, exciting, interesting, and maddening. Balkin opens my eyes, even if he makes me see red. Sometimes Balkin’s arguments lack logic and proportion, but Balkin is willing to take positions that would make other tremble, and he defends those positions with arguments that take your breath away. Without Jack Balkin, we wouldn’t have gonzo jurisprudence.
Coda California Highway 178, West of Shoshone. Night. I made the turn just before Shoshone--really just a crossroads and a general store. I'm on 178, driving through the hills. Random thoughts, once again. Driving to Vegas. Gonzo. Hunter S. Thompson. Fear and Loathing. Then back to Balkin. Thinking about Balkin's arguments. I am in a sea of black landscape and brilliant stars, my car goes round a bend and comes out on the other side of a hill. And there it is, the orb, hanging low and white in the sky, with that lopsided face grinning at me. I push the search button on the radio, and something extraordinary happens. The gritty alto voice of Grace Slick fills the still desert air. If you are very quiet, you can still hear her voice echoing
Go ask Alice. I think she'll know.
When logic and proportion have fallen sloppy dead,
And the white knight is talking backward,
and the red queen's off with her head,
Remember what the dormouse said:
"Feed your head! Feed your head!"
Prelude Northbound on Interstate 15, South of Barstow. Late afternoon. I am driving to Las Vegas on a sad and personal errand. I don’t know about you, but when I do long distance driving my mind wanders. My dad. A Seinfeld episode. Blogging. The Internet. The Matrix. And before I know it, I’m thinking about The Matrix Reloaded and a how it gives new meaning for the phrase "special effects." Surprised at myself, I find that I am sympathizing with Agent Smith. What a pain Neo is. Smith plans and prepares, but no matter what how meticulous his plans may be, Neo always has a counter move, an evasion, an exit. No matter how quick Smith is, Neo is always faster. Neo has lost his grip on the apparent reality of the matrix, and so the matrix has no grip on Neo. And that reminds me . . .