Following on this post from last week, Yale Law School Constitutional Law professor Jack Balkin (of the popular Balkinization blog) pens this Slate op-ed in which he makes the case against originalism and in favor of the “living Constitution” approach to interpreting the U.S. Constitution. He notes:
Nobody, and I mean nobody, whether Democrat or Republican, really wants to live under the Constitution according to the original understanding once they truly understand what that entails. Calls for a return to the framers’ understandings are a political slogan, not a serious theory of constitutional decision-making.
In fact, the contemporary movement for originalism began as a conservative political slogan used to attack the Warren Court’s decisions on race and criminal procedure. It mutated from a concern with the original intentions of the framers, to the intentions of the ratifiers, to how the public would have understood and applied the Constitution’s words at the time they were adopted.
Today’s originalism is hauled out to attack decisions that judges and politicians don’t like. But when it comes to decisions they do like, or would be embarrassed to disavow, the same judges and politicians quickly change the subject. In practice contemporary originalists pick and choose when they will demand fidelity to original understanding. Sometimes they even mangle the history to get to results they like.
Professor Balkin closes with the following pragmatic defense of the living Constitutional approach:
In the long run, the Supreme Court has helped secure greater protection for civil rights and civil liberties not because judges are smarter or nobler, but because the American people have demanded it. When social movements like the civil rights movement or the feminist movement convince the center of the country that their claims are just, the court usually comes around. Sometimes it gets ahead of the center of public opinion, and sometimes it’s a bit behind. But in the long run it reflects the national mood about the basic rights Americans believe they deserve. . .
Rather than a set of shackles designed by long-dead slave-owners, the framers bequeathed to us a Constitution that could adapt to the needs and aspirations of each succeeding generation. Their faith in the possibilities of the future, and our enterprise in realizing that future, have made us the great and free nation we are today.
Read the entire piece, and also Stuart Buck’s blog post challenging a portion of Mr. Balkin’s analysis.
Some lawyers have have a narrow understanding of originalism that doesn’t always encompass what some of us (political theorists!) have in mind when we think of originalism.
The living constitution advocates tend to be the progeny of Progressives who drove a revolution in our thinking about American constitutionalism (as a political-philosophical matter, not as a narrow matter of interpreting law). Broadly speaking, it was an historicist political/philosophical movement that delinked the political philosophy of the Declaration from the broader American constitutional tradition. People schooled in that tradition sometimes take it for granted, and don’t always fully understand the constitutionalism that preceded it.
Progressives were very clear about their rejection of natural right in favor of living constitutionalism — effectively, the determination of truth (no longer considered timeless or even objective, if considered at all) by popular will.
Political theorists of the Lincolnian persuasion have a very different understanding of American constitutionalism. Some of the folks affiliated with the Claremont Institute speak most forcefully on the matter. Theirs is not the the simple legal originalism that tends to be dismissed by legal “living Constitution” advocates (although their argument would be rejected by those advocates).