Living Originalism

Living Originalism

Jack M. Balkin
Copyright Date: 2011
Published by: Harvard University Press
Pages: 480
  • Cite this Item
  • Book Info
    Living Originalism
    Book Description:

    Originalism and living constitutionalism, often seen as opposing views, are not in conflict. So argues Jack Balkin, a leading constitutional scholar, in this long-awaited book. Step by step, Balkin shows how both liberals and conservatives play important roles in constitutional construction, and offers a way past the angry polemics of our era.

    eISBN: 978-0-674-06303-7
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
      (pp. 3-20)

      Is our Constitution a living document that adapts to changing circumstances, or must we interpret it according to its original meaning? For many years people have debated constitutional interpretation in these terms. But the choice is a false one. Properly understood, these two views of the Constitution are compatible rather than opposed. Once we see why they are compatible, we will also understand how legitimate constitutional change occurs in the American constitutional system.

      This book offers a constitutional theory, framework originalism, which views the Constitution as an initial framework for governance that sets politics in motion, and that Americans must...

      (pp. 21-34)

      In Chapter 1, I argued that fidelity to the original meaning of the Constitution and living constitutionalism are compatible positions, two sides of the same coin. Although not all versions of originalism and living constitutionalism are compatible, the most intellectually sound versions of each theory are. Recognizing why they are compatible helps us understand how legitimate constitutional change occurs in the American constitutional system. In this chapter I show how fidelity to original meaning promotes a constitution’s central purposes: setting up a basic structure for government, making politics possible, and creating a framework for future constitutional construction.

      I begin by...

      (pp. 35-58)

      In Chapters 1 and 2 I argued that fidelity to the Constitution requires, at the very least, fidelity to the original meaning of the constitutional text, and to the choice of rules, standards, and principles stated in the text. The Constitution is a framework for politics on which later constitutional constructions will be built. This framework simultaneously constrains and enables ordinary politics and future constitutional construction.

      One can object to my account from two directions: some living constitutionalists may think it is not sufficiently adaptable, and some originalists may think it is not sufficiently fixed. In this chapter, I take...

      (pp. 59-73)

      A successful constitution like America’s must serve many different and overlapping functions. For convenience, I divide them into three categories: A constitution like America’s must simultaneously work as basic law, as higher law, and as our law.

      By basic law I mean that the Constitution sets up a basic framework of government that promotes political stability and allocates rights, duties, powers, and responsibilities. It sets up a plan for ordering political life and offers ways of implementing, expanding, or modifying the plan over time. A constitution also serves as basic law in the sense that it is foundational law (or...

      (pp. 74-99)

      At the close of Chapter 4 I noted that the democratic legitimacy of the Constitution depends in part on people believing that the Constitution can eventually move closer to their ideals. Different citizens, from their varying perspectives, must be able to see that the constitutional system, understood in its best light, is sufficiently just that they can accept it as theirs, or—if it is not currently sufficiently just—they must be able to have faith that it could become so in time.

      In this chapter, I argue that a similar belief supports the practice of constitutional interpretation. Interpreting the Constitution as...

      (pp. 100-108)

      In Chapter 1, I argued that fidelity to the Constitution requires fidelity to original meaning. So do most conservative originalists today. Most conservative originalists, at least in the legal academy, have long abandoned arguing for following either “original intentions” or the “original understanding.” What differentiates my version of original meaning from theirs?

      I noted earlier that although most conservative originalists claim that they seek only to follow original meaning, they tend in practice to conflate original meaning with original expected application. As I noted in Chapter 1, Justice Scalia offers the clearest example of how this conflation occurs, and he...

      (pp. 109-126)

      In Chapter 6, I explained how conservative original-meaning originalism models constitutional principles and original meaning on original expected applications. This creates a serious conflict with many important features of contemporary American law that are not really consistent with original expected applications. These include the administrative and regulatory state that came with the New Deal, the expansion of modern civil rights and civil liberties that emerged from the civil rights revolution, and the transformation of the presidency in the national security state.

      Taken together, the New Deal, the national security state, and the civil rights revolution constitute a good portion of...

      (pp. 129-137)

      The first part of this book described a general theory of constitutional interpretation and construction. This chapter and Chapters 9 through 12 show how to use the method of text and principle in practice; they are primarily written for lawyers and for people interested in the structure of legal doctrine who want to know how to apply the book’s ideas to specific legal controversies. Chapter 9 looks at the scope of modern federal power and the commerce clause; Chapters 10 and 11 examine the Fourteenth Amendment, and Chapter 12 draws a few general lessons about constitutional construction.

      These examples show...

    • 9 COMMERCE
      (pp. 138-182)

      A good test for the plausibility of any theory of constitutional interpretation is how well it handles the doctrinal transformations of the New Deal period. Roughly between 1937 and 1942, the Supreme Court significantly altered the law of federal–state relations, including the federal power to regulate commerce and to tax and spend for the general welfare.

      The doctrinal structure that emerged by the mid-1940s was drastically different from the expectations of the founding generation. Even the most stridently nationalist members of that generation would not have expected a federal government as powerful as the one that developed in the middle...

      (pp. 183-219)

      The Fourteenth Amendment may be the Constitution’s most important source of civil rights and civil liberties. Yet it presents a genuine problem for expectations-based originalism, including versions of originalism that try to construct principles from how the generation of 1868 would have applied the constitutional text. Deriving constitutional principles from original expected application cannot account for the modern protection of constitutional civil rights and civil liberties. For example, the generation that ratified the Fourteenth Amendment would not have accepted our modern notions of sex equality and believed that states should be able to ban marriage between blacks and whites. Because...

      (pp. 220-255)

      The next two clauses of the Fourteenth Amendment protect all persons, not just citizens. The equal protection clause, together with the due process clause, Senator Howard explained, was designed to “abolish[] all class legislation in the States and do[] away with the injustice of subjecting one caste of persons to a code not applicable to another.”¹ Section 1 of the Fourteenth Amendment “establishes equality before the law, and it gives to the humblest, the poorest, and the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the...

      (pp. 256-274)

      The last several chapters have shown how to apply the method of text and principle in particular legal controversies. They use of all of the modalities of constitutional argument, which are familiar to all lawyers and available to all citizens. These include arguments about text; pre-enactment history, including original purposes, original principles, original intentions, and original expected applications; post-enactment history, including constitutional arguments and constitutional constructions by prominent individuals, social movements, and public officials; judicial precedents; precedents by nonjudicial actors; structural considerations; consequences; national ethos; and narrative understandings of the trajectory and meaning of national history.

      Described in the abstract,...

      (pp. 277-319)

      I began this book with a central claim: fidelity to original meaning and the idea of a living Constitution that adapts to changing times and conditions are not rival theories of constitutional interpretation; they are actually compatible positions. When we understand how and why they are compatible, we will also understand how democratically legitimate constitutional change that is faithful to the Constitution’s original meaning occurs in the American constitutional system. To this end I have offered what I believe is the best account of fidelity to original meaning, framework originalism, and an approach for interpretation and construction that is faithful...

      (pp. 320-340)

      In Chapter 13 I explained that the processes of constitutional change are primarily the work of constitutional construction, involving both the political branches and the courts. What we call a “living Constitution” is really the product of constitutional construction and changes in constitutional construction over time. It is a “democratic constitutionalism,” to use Post and Siegel’s expression, because constitutional doctrine is responsive, over time, to a wide variety of political and cultural forces. Constitutional change occurs (1) because of changes in constitutional culture—what ordinary citizens and legal and political elites believe the Constitution means and who they believe has authority...

  6. NOTES
    (pp. 341-458)
    (pp. 459-460)
  8. INDEX
    (pp. 461-474)