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!