Barnett on Balkin’s Living Originalism and Living Constitutionalism 2.0

April 10th, 2013

A nice, short summary by Randy of Jack’s new theory of originalism. The concluding section confirms my observation–that “text and principles” often gives way to “text or principles,” and “living originalism” gives way to good ‘ol “living constitutionalism.”

For example, there is a danger in slipping from applying text and principle to applying text or principle instead. Balkin’s methodology as presented would involve analyzing the text to check for plain meaning and turning to underlying principles if the original meaning is not clear. On his account, the underlying principle then becomes disembodied from the text and is applied generally, while leaving the text it supposedly underlies behind. When this happens, the method ceases to be originalism plus construction, and becomes all con- struction. Indeed, this is the way most living constitutionalism has always been practiced. Living originalists claim to be truer to the ‘‘principles’’ of the Constitution than those who would blindly follow the text. The term ‘‘living constitutionalism’’ was coined to justify ignoring or contradicting text in favor of more dominant contemporary principles that are said somehow to derive from, or underlie, the text.

Closely related to this unrefined ‘‘text or principle’’ methodology is the notion that constitutional meaning is more of a continuum of rules on one end and open-ended standards on the other. In crucial places, Balkin turns the text into a more of a standard than the evidence of textual meaning would support. So, for example, although some a principle of ‘‘equality’’ may well underlie the clause protecting the ‘‘equal protection of the law,’’ the words ‘‘protection’’ and ‘‘of the law’’ have a narrowing meaning that quickly gets jettisoned. Done properly, any resort to underlying principles must then ree- merge through the text for it to be the text, rather than the disembodied principle, to provide the law of case.

I made a similar point in Originalism at the Right Time:

Under Balkin‘s methodology, the word original—which connotes something, well, original—very quickly gives way to the other half of the title, living. Through the process of interpretation, Balkin determines what the fixed semantic content of the text was—this is the ―originalism‖ aspect of living originalism. Next, Balkin looks to postenactment developments— from constitutional amendments to judicial precedents, social movements, and other grounds (like Calabresi and Rickert do)—in order to ascertain the principles that give the text its meaning in our modern society—this is the ―living‖ aspect of living originalism.59 Call his approach common law construction.

For Balkin, the living construction, rather than the originalist interpretation does most of the heavy jurisprudential lifting.60 In many respects, living originalism is only originalist to the extent that it considers original matters, and living to the extent that it considers unoriginal, modern matters. Or to put it a different way, in terms of Balkin‘s ―text and principle‖ approach, the interpretation of the semantic content of the text is original, but the construction and application of the principles are alive and well. The text does not change absent Article V amendment, but the principles do. Balkin‘s living originalism is indeed not originalism at the right time—admittedly so.

Randy continues by charging that living originalism, at times, simply devolves into living constituitonalism.

I hasten to add that I do not think that Balkin is insincere in the methodo- logical section of the book. But when executing the methodology, his old living constitutional self resurfaces. Though it is not irremediable, this looseness of his approach to constitutional construction may regrettably shift the focus from Balkin’ momentous methodological breakthrough in uniting two opposing camps of constitutional scholarship. Instead, he leaves himself vulnerable to charges of opportunism. Both his critics on his left and on his right may charge that his supposed adoption of originalism is a feint. He only adopts originalist rhetoric because his ‘‘text and principle’’ approach to construction gets him everywhere he wants to go.

In Keeping Pandora’s Box sealed, Ilya Shapiro and I referred to Balkins redemptive constitutionalism (he hadn’t yet coined the term “living originalism”) as “Living Constitutionalism 2.0.”

The second group, “redemptive constitutionalists”—among other labels— advocate a substantive constitutional vision as opposed to a legal theory. That is, instead of presenting a theoretical framework, redemptive constitutionalists merely use the courts and constitutional interpretation as a political tool to achieve their agenda. Professor Balkin’s version of originalism is based on “text and principles,” as opposed to Justice Scalia’s original expected application.108

108  In future works, the authors will contend that this form of “originalism” is nothing more than “Living Constitutionalism 2.0.”