Jack Balkin on Originalism and Living Constitutionalism

Jack Balkin has posted an essay from a conference held in Jerusalem on his new book Living Originalism.  One can only marvel at the number of conferences and symposia on the book.

As many readers know, Jack is an advocate of originalism, but of a different type of originalism.  Under Jack’s view, originalism is compatible with living constitutionalism: hence the title of his book, Living Originalism.  While Jack’s book is innovative and interesting, Jack may be the only originalist who believes that these two positions are compatible.

Jack’s position, however, is also distinctive in other respects.  One can draw a distinction between two different types of interpretive theories: positive theories and normative theories.  Positive theories are theories of the actual meaning of a document.  Normative theories are theories of what it would be desirable for the document to mean.

Virtually all originalists believe that the positive theory of interpretation is originalist.  Some originalists also believe that the normative theory of interpretation is originalist as well, although some originalists do not.  (For example, John McGinnis and I argue that the actual meaning of the Constitution is its original meaning and that this meaning is the desirable meaning as well.)  Thus, virtually all originalists believe that the original meaning of the Constitution is the actual meaning of the Constitution, and reach this conclusion without considering values or normative matters.

Jack, however, has a different perspective.  He appears to argue that there is no positive theory of interpretation.  Instead, one must choose a theory of the meaning of the Constitution by reference to values:

Inevitably, then, we face a choice in the present about what aspects of cultural meaning should constitute “original meaning” for purposes of  constitutional interpretation. There is no natural and value-free way to make this selection. It cannot be settled by the meaning of “meaning,” much less the meaning of “original.” It is a choice that is informed by the purposes of a constitution and the promotion of the kind of legitimacy (democratic, social, procedural, or moral) we want our government to have (page 828).

This is, as I say, an unusual position among originalists, even among originalists (like Jack) who are described either as new originalists or constructionist originalists.

Now, one of the interesting things about Jack’s theory is his attempt to reconcile originalism with living constitutionalism.  How can he do it?  Well, the answer is actually based on his theory of meaning.  Jack adopts a very thin or minimal theory of meaning, which means that the original meaning decides relatively very little of the content of the Constitution.  What supports this theory of meaning?  As Jack explains, it is his view of the proper values –  his view that the Constitution ought not to decide too many issues up front:

My (selective) account of original meaning flows from my view about how written constitutions work over long periods of time and what makes them legitimate for generations long after their adoption.  Constitutions are basic plans for politics that have to be carried out over time by many different generations, who may not share the adopters’ cultural presuppositions and worldview. Not everything can be settled at the outset; therefore adopters must put their trust in later generations to carry out the plan and adapt it to new circumstances (page 829).

Thus, how does Jack reconcile originalism and living constitutionalism?  In short, he believes that living constitutionalism is a good idea and therefore adopts a theory of meaning that allows for it.  If one can adopt the theory of meaning based on one’s values, then one can have great influence over the Constitution’s meaning.

Reader Discussion

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on May 08, 2013 at 10:21:12 am

Is there anything truly novel in Balkin's approach? It seems to be comparable to the superior tactics adopted by FDR. While the first generation of Progressives simply said the Constitution was the problem, FDR wrapped his program in the flag. He simply declared: the Founder's Constitution is awesome precisely because it is progressive--the elastic Constitution. Consider this breathtaking comment made during the 1932 campaign:

"The Declaration of Independence discusses the problem of Government in terms of a contract. Government is a relation of give and take, a contract, perforce, if we would follow the thinking out of which it grew. Under such a contract rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights. The task of statesmanship has always been the re-definition of these rights in terms of a changing and growing social order. New conditions impose new requirements upon Government and those who conduct Government. "

If natural rights it the problem, then, just re-write the Declaration.

Or consider this statement he made in his First Inaugural Address, in stating that Congress might have to give him, via an enabling act, broad power to be commander in chief of the economy:

"Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form. That is why our constitutional system has proved itself the most superbly enduring political mechanism the modern world has produced. It has met every stress of vast expansion of territory, of foreign wars, of bitter internal strife, of world relations."

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David Upham

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