Tuesday, July 20, 2010

On and off the wall

Randy Barnett responds to Jack Balkin's post of yesterday, which was responding to this post by Barnett from the day before. The question du jour, more or less, is whether Barnett's commerce and taxing powers arguments--embraced by 21 state attorneys general in the two lawsuits, as well as a decent number of legal academics--are "off the wall"--that is, generally outside the current mainstream of American constitutional understandings. And the stakes in this little debate are hardly trivial. No matter how skeptical one might be about the role of doctrine in Supreme Court decision making, it is quite difficult for the Court to base its decisions on legal arguments that are simply not respected in the legal community (i.e., considered "off the wall" by a vast majority of lawyers of all ideological stripes). So part of what is unfolding is an effort by both sides to shape the perceptions of various constitutional arguments within the legal community, and particularly among elite constitutional lawyers. This is part and parcel of how constitutional law is "made" in the United States.