Wednesday, June 20, 2012

Constitutions: Living, Dead and Undead

By Mike Dorf


The June 2012 issue of the Harvard Law Review includes a review I wrote of two books: Jack Balkin's Living Originalism and David Strauss's The Living Constitution.  In my review--titled The Undead Constitution--I praise both books, which is not to say that I entirely agree with either.  Here I'll briefly summarize the books and my review, although I would recommend that interested readers check out all three for much more detail and nuance.

1) Both Balkin and Strauss critique what is sometimes called "expectation originalism," i.e., the notion that the contemporary meaning of a constitutional provision is found in the concrete expectations of the framers and ratifiers of the provision.  Thus, if the framers and ratifiers of the Fourteenth Amendment expected that its equal protection clause would invalidate most official racial classifications but few or no sex-based classifications, then expectation originalism would reject modern sex discrimination case law (unless perhaps it could be saved by stare decisis).  I agree with their criticisms on this point.  Both authors explain that the Constitution variously uses (detailed) rules and open-ended standards, but expectation originalism is not faithful interpretation because it substitutes rules (found in the framers' and ratifers' expectations) for standards.

2) Scholars (and others) who have followed the debate over originalism for the last couple of decades may wonder whether the critique of expectation originalism targets a straw man.  After all, few if any scholars or judges claim to adhere to expectation originalism these days.  Instead, "new" originalism is "semantic originalism."  Semantic originalists believe that modern interpreters are bound by the meanings words had (their semantic content) at the time that those words were enacted into law, but not bound by the expectations (or by the subjective intentions) the framers and ratifiers may have had apart from the words' meaning.  Nonetheless, Balkin and Strauss are justified in critiquing expectation originalism for three reasons: a) many laypeople and politicians continue to adhere to expectation originalism; b) judges and SCOTUS Justices who say they follow semantic originalism often invoke evidence of original expectations, thus pulling a kind of bait and switch; and c) some of the criticisms of expectation originalism also undermine semantic originalism.

3) Balkin, for his part, professes to be a particular sort of semantic originalist: a "living originalist."  He thinks that contemporary interpreters are bound by the original semantic meaning of the words of the Constitution, but that this leaves open a large area for modern interpreters to fill in the blanks.  He thus joins other "new originalists" like Randy Barnett, Larry Solum, and Keith Whittington--although Balkin's decision to go over to the dark side was more newsworthy than any of the others' because of Balkin's progressive street cred.  My review notes that in some sense Balkin's outing himself in this way should not be a big deal.  In the mid-90s Ronald Dworkin also endorsed semantic originalism and Strauss says in his own book that certain versions of originalism are indistinguishable from living constitutionalism.

4) Nonetheless, there is at least a theoretical difference between Balkin and Strauss.  As a semantic originalist, Balkin contends that it is never legitimate for a later interpreter to take advantage of semantic drift to favor contemporary meaning over original meaning, where the two differ.  Thus, to take a somewhat stylized example, if the words "equal protection" in 1868 simply meant "formally equal application of the same body of law, whatever its content," then a later interpreter (in 1954 or 2012 or whenever) would not be applying the equal protection clause if he interpreted it to refer to some broader notion of equality, even if, in the interim, the words "equal protection" had taken on the broader meaning.  I argue in the review that Balkin's insistence on this proposition is inconsistent with his own account of what makes the Constitution binding on post-enactment generations--the People's voluntary acceptance of the Constitution.  Such acceptance is not merely a brute fact (in the way that Hartian positivists might treat it) but a product of social and political movements that aim to reform society and law.

5) My review credits Balkin with placing such social and political movements at the center of his account of constitutional change, but I disagree with his further claim that such movements in fact operate in the open spaces left by semantic originalism.  There is little evidence, I say, that movement actors even know  the original semantic meaning of the constitutional language that their movements, if successful, end up implementing or changing.  Nor should they have any reason to care about original semantic meaning.  Social and political activists can be expected to use the Constitution opportunistically.  As a byproduct of such opportunism and social and political change more broadly, constitutional meaning can change.  But that doesn't mean that social and political movements are or should be about giving effect to original semantic meaning.

6) Finally, my review describes both Strauss and Balkin as embracing Burkean conservatism rather than progressivism.  Strauss does so expressly, tying his view of constitutional law as a form of common law to Burkean gradualism; Balkin doe so tacitly, arguing that the channeling of social movement energy into constitutional rhretoric acts as a brake on too-radical change.  I have some sympathy for Burkeanism, at least in some contexts, but, I argue in the last part of my review, Burkeanism is at best another form of conservativsm to offer as a competitor to the reactionary conservatism of originalism.  If originalism offers, in Justice Scalia's phrase, a "dead Constitution," then Burkeanism does not offer a living Constitution. It offers only an "undead Constitution."

Intrigued?  Confused?  Read the full review--and the books!

13 comments:

Shak Olreal said...

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egarber said...

What resonated most with me from Balkin's book is his notion of an aspirational constitution. He distinquishes it from "skyscraper originalism" (or something close).

The latter treats meaning and text as essentially finished, the way a high-rise is a completed effort. But if we say the constitution is aspirational, we're saying that our understanding of it can be made more perfect -- i.e., the first use of the words merely represents the starting point.

As such, even if he's an "originalist" semantically, there's a gigantic space for expansive interpretation, so long as it attaches to first principles.

If society is ready for enlightened change, it's hard to see what forms of it wouldn't fit within an aspirational model. So to me, a lot of the philosophical differences in this area seem too nuanced to really mean anything practically. I mean, isn't it probably true that the desired outcomes in real cases are 99% similar between say, Balkin's living originalism and a pure version of living constitutionalism?

I think the bigger question is how we define the divide that truly results in different outcomes.

Don't get me wrong, all the analysis is great; I'm just not sure we can derive much predictive value from it.

Joe said...

I am not too excited by Prof. Balkin's professions of support of originalism, especially given it is so open ended that there doesn't seem much of a point to be actually so "bound" by it.

Honestly, I think it is a sort of sport to use the current popularity in various quarters, especially the USSC, for originalism and obtain liberal ends.

There is a certain pragmatic value to this, but it's hard to take seriously on principle. I think the common law approach is the best one. Like the Bible, the original understanding is of some import, but ultimately we are only "bound" with what current society has understood it to mean.

Cutting thru the verbosity, that is what I myself get from all of his writing. I am not totally surprised that various "originalists" don't totally take him seriously.

Sam Rickless said...

" I argue in the review that Balkin's insistence on this proposition is inconsistent with his own account of what makes the Constitution binding on post-enactment generations--the People's voluntary acceptance of the Constitution."

The claim that the people's voluntary acceptance of the Constitution is what makes it binding on them strikes me as ambiguous. Do you mean that for Balkin, what makes the Constitution binding on the people is their voluntary acceptance of what they take it to mean? If so, then it looks like inconsistency beckons. Or do you mean that for Balkin, what makes the Constitution binding on the people is their voluntary acceptance of what it was originally understood to mean? In that case, Balkin's position does not appear to be inconsistent. Of course, I could read Balkin's book and your review, but I'm a little pressed for time right now. So I just thought I'd ask.

Michael C. Dorf said...

IN response to Sam: Balkin appears to make the latter claim: that the People accept the Constitution's original meaning. I think that even with his thin view of original meaning (which leaves a great deal to the domain of "construction" rather than "meaning" or "interpretation"), that this claim is empirically false. The People have very little idea of what the Constitution says, much less what it originally meant.

But I don't think that knowledge of the Constitution's exact contents bears a direct relation to how it should be interpreted. (Adam Samaha had a nice paper not that long ago about the relation between theories of legitimacy and theories of interpretation.)

Sam Rickless said...

Thanks, Mike. OK, so then Balkin's view may be false, but it isn't inconsistent.

There is also another ambiguity here that may help Balkin. (Though, again, I haven't read his book, so I'm probably wrong.) To say that the people accept the constitution as originally understood is to say either (i) that the people accept the particular propositions expressed by the words of the constitution when given their original meanings, or (ii) that the people accept the proposition that the constitution should be understood to mean what it originally meant. I agree with you that (i) is empirically false. But it is not at all clear to me that (ii) is empirically false.

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