By Eric Segall
In 2007, Professor Jack Balkin of Yale Law School shocked the academic world by arguing that Roe v. Wade could be justified under an "originalist" approach to constitutional interpretation, and that living constitutionalism and originalism were opposite sides of the same coin. Balkin would later expand that article into a book called, of course, "Living Originalism."
I want to be crystal clear on two points before moving forward. Balkin's descriptive accounts of constitutional law (which rely considerably on social movements) are as sophisticated, interesting, and accurate as any I have ever read. However, his labeling of his theories as "originalism" has not been helpful and has clouded rather than clarified constitutional debates.
In his article on abortion and original meaning, published several years before Elena Kagan's confirmation hearing in 2010, Balkin wrote the following: "When the text is relatively rule-like...the underlying principles cannot override the textual command.... But where the text is abstract, general or offers a standard, we must look to the principles that underlie the text to make sense of and apply it."
Balkin used this framework to argue that the 14th Amendment, read at a suitable level of generality, could justify Roe as an originalist matter because judges today are not bound by the specific expectations of those who ratified the Constitution and its Amendments but rather the broad principles they laid down. Thus, the equal protection principle supports a woman's right to choose. In Balkin's words: "Laws that discriminate against women and keep them in conditions of dependency violate the Fourteenth Amendment's Equal Protection Clause because they violate the principles against class legislation, caste legislation, and subordinating legislation."
This blog post is not about original meaning and abortion with the caveat that, of course, if judges are allowed to use modern standards to enforce broad principles like equality under the law that is not originalism in any meaningful sense of the term as I and others have argued about a zillion times.
Balkin's "originalist" turn was much discussed, debated, and conferenced at the time inside the legal academy. When the piece came out, Elena Kagan was Dean of Harvard Law School and would continue in that role for a couple more years. I have no personal information that she was aware of Balkin's work, but if she wasn't, that would be quite surprising.
Here is what Kagan said at her confirmation hearing when asked about originalism (this link is to a video clip):
“Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do. In that way, we are all originalists.”
Kagan's "text" and "principle" approach (Balkin's words in his scholarship) to constitutional interpretation is quite similar to Balkin's theory. Let's give Kagan credit for understanding that allowing judges to use broad principles underlying most of the Constitution's imprecise provisions results in the kind of living constitutionalism that originalists have long said they deplored. Nevertheless, her uttering of that sentence--"In that way, we are all originalists"--unlike Balkin's work, reverberated both inside and outside the legal academy in ways I just can't believe she anticipated (she was testifying in front of the Senate which at the time was controlled by Democrats so she knew she had the confirmation all but locked up).
Justices Gorsuch and Kavanugh both cited Kagan's statement about originalism in their confirmation hearings to great rhetorical effect. But Kagan's statement has been used (read manipulated) in many places before and after those confirmation hearings, almost always by folks who want to pretend that originalism is our law or should be our law. I don't believe, though I concede it is rank speculation, that Kagan would have made that statement without Balkin's scholarship explicitly tying liberal results like Roe to originalism.
Here are representative examples of the attention (read harm) caused by Kagan's statement:
Senator Mitch McConnell, (2020) sent out a newsletter with the title: "We are all Originalists," citing among others Justice Kagan.
The Blog of the Legal Times (2010), devoted to "law and lobbying in the nation 's Capitol," ran the headline "Kagan: We are all Originalists."
Politico (2010): "Elena Kagan’s testimony during her Supreme Court confirmation hearings...officially ended the heated debate over conservative 'originalism' versus liberal 'living constitutionalism.'"
The Atlantic (2021): "Even Justice Elena Kagan, one of the Court’s more liberal members, said at her confirmation hearing that 'we are all originalists' these days.'"
The Wisconsin Lawyer (2020): “'We are all originalists'.” Or so says Justice Elena Kagan."
The Washington Examiner (2020): "When President Barack Obama nominated Judge Elena Kagan to the Supreme Court a decade ago, she declared in her nomination hearings, 'we are all originalists now.'"
I could go on and on with articles in the media throughout the 2010-2021 period using Kagan's testimony to suggest, well many things, but often using it to support the idea that originalism is now well accepted by even liberal judges, etc., etc. But even academics got into the game. Randy Barnett and Josh Blackman, two well known academic originalists, wrote about Kagan's testimony in National Affairs, albeit with a more critical perspective. They argued that her originalism only applied to the very specific rules laid down in the Constitution (which is in effect what she said).
But, and the irony of this is almost too much to bear, Barnett has written favorably about Balkin's "text and principle" approach, which is effectively Kagan's theory as well, even so much as to agree with Balkin that Roe may well be correct under an originalist approach to the Constitution. Barnett wrote in a symposium on the Balkin article mentioned earlier in this post: "I am in agreement with nearly everything Balkin says about original meaning originalism in Part II of his article. I am also sympathetic with his conclusions about the unconstitutionality of prohibitions on abortion," Kagan would be too.
Professor Will Baude, who along with Professor Steve Sachs, has been flooding the law reviews with arguments that "originalism is our law," relied on Justice Kagan’s testimony in his seminal piece on originalism in the Columbia Law Review. Of course, a liberal Supreme Court nominee saying we are all originalists is great fodder for Baude's belief that, despite centuries of non-originalist decisions by the Supreme Court, somehow originalism is our law.
All of this, in a word, is nonsense. Of course Kagan is not an originalist in any meaningful sense of that term. As I've written too many times for my health, if originalism means that judges should apply clear text as written but use values other than historical analysis to apply the general principles in the Constitution, then originalism and living constitutionalism are the same thing. But virtually no one outside the legal academy thinks that way. When people hear pundits, academics, and scholars say "we are all originalists" they view that as a political statement more than a complex theory of constitutional interpretation. And, of course, that's the entire point.
Professor Eric Posner (yes the son of the other Posner) understood all this when talking about the Balkin/Kagan text and principle approach. In an interview with NPR, Posner said "I think they (liberals) [are] trying to figure out what the PR angle of originalism is and how to duplicate it." The writer than said, "Posner says he believes everyone is trying to disguise the fact that judges are basically political actors, on the left and right."
Mike wrote an excellent piece on Balkin's work in the Harvard Law Review saying that, "in embracing the originalist label, Balkin aims to accomplish a kind of jujitsu, turning a theory that was engineered largely by political conservatives toward liberal ends."
As I previously wrote on this blog, far from "we are all originalists," we are in fact all legal realists now, though politicians, pundits, academics, and especially Supreme Court Justices keep trying to hide that fact, as Eric Posner suggested. Kagan's misleading sound bite, along with Balkin's attempts to transform living constitutionalism into originalism, have just made it more difficult to see SCOTUS clearly.
Labels matter, and here so-called liberal originalism confuses and obfuscates how judges decide constitutional cases, all to the effect of helping the Republican Party. In this sense, as Mark Tushnet likes to say, "law is politics all the way down," at least in the constitutional sphere, where so many of us reside.