Balkin's Originalism:
Underlying Principles, my very brief (11 pages) comment on Jack Balkin's Original Meaning and Abortion, is now up on SSRN. Here is the abstract:
In his forthcoming article, Original Meaning and Abortion, Jack Balkin makes the startling disclosure that he is now an originalist. "[C]onstitutional interpretation," he writes, "requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. The task of interpretation is to look to original meaning and underlying principle and decide how best to apply them in current circumstances. I call this the method of text and principle."

In this brief reply, I caution that, to remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text we are expounding. And it is the text, properly interpreted and specified in light of its underlying principles, not the underlying principles themselves, that is to be applied to changing facts and circumstances by means of constitutional doctrines. There is another highly familiar and very nonoriginalist way to see the relationship between "text and principle": One could discern the principles underlying the text, and then apply these principles directly to new circumstances. By so doing, one can end up potentially expanding the reach of, and even contravening, the text itself. Because Balkin sometimes appears to be endorsing the second of these two approaches to text and principle in this paper, he may give some readers the mistaken impression that he is still employing a living constitution approach under the guise of original meaning originalism.
In his contribution to the symposium, Ethan Lieb agrees that Balkin's move to originalism is both real and significant:
It certainly seems like the originalists are winning. Professor Jack Balkin — finding that he couldn't beat 'em — joined them. Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote we are all living constitutionalists now. But Balkin has forsaken them. Losing such an important advocate might be a sign that what some once deemed the ascendant and dominant theory in constitutional interpretation is on the decline. Still, don't count living constitutionalism out of the game just yet.
You can read Ethan's article, "The Perpetual Anxiety of Living Constitutionalism," here.

Interestingly, in his article, Ethan wrongly guesses that my reaction to Balkin will be similar to my reaction to Justice Scalia's originalism. Even more interestingly, he and commenters on PrawfsBlawg muse about why I seem to be going so easy on Jack here. Except for the last 2 posts (at 4:44:13 & 1:01:37), it's an unusually perceptive exchange.

For those who have not seen my critique of Justice Scalia, Scalia's Infidelity: A Critique of Faint-Hearted Originalism, I just uploaded the published version here. Here is the abstract:
In this essay, based on the 2006 William Howard Taft lecture, I critically evaluate Justice Antonin Scalia's famous and influential 1988 Taft Lecture, entitled Originalism: The Lesser Evil. In his lecture, Justice Scalia began the now-widely-accepted shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text. At the same time, I explain how Justice Scalia allows himself three ways to escape originalist results that he finds to be objectionable: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and (3) (when the first two justifications are unavailing) just ignore originalism to avoid sufficiently objectionable results. While Justice Scalia describes his approach as faint-hearted originalism, I contend that he is not really an originalist at all as evidenced by this lecture and also by his stances as a justice in several important cases. This leaves Justice Thomas as the only justice who seems at all bound by originalist conclusions with which he may disagree. I then summarize why the courts ought to adhere to original public meaning originalism, why this form of originalism is preferable to the principal alternative - which I call the underlying principles approach - and why originalism, properly understood, does not lead to the types of grossly objectionable results that lead Justice Scalia to be faint of heart.

It is debatable that originalists are winning. "Original meaning" originalism is winning. But "original intent" originalism is losing. And the triumph of original meaning is a Pyrrhic victory for originalism (as originally intended).

Original meaning originalism -- which asks what the words of the Constitution meant when they were drafted, not how their drafters thought they should be applied -- is highly indeterminate. It leaves lots of room for debate about the best application of broad constitutional text. Thus, as Balkin says, accepting original meaning originalism means rejecting the dichotomy between originalism and the living constitution. In Balkin's -- and Barnett's hands -- the theoretical triumph of "original meaning" originalism entails the triumph in practice of the Living Constitution.
1.8.2007 6:22pm
Elliot Reed:
In Balkin's -- and Barnett's hands -- the theoretical triumph of "original meaning" originalism entails the triumph in practice of the Living Constitution.
You say that as though it's a bad thing. Notwithstanding the other problems with original intent originalism (whose intent? how do you aggregate conflicting intents? what if they never considered the issue in question and therefore had no intent regarding it at all? etc.) do we really want a world where the Fourteenth Amendment permits "separate but equal" schools?
1.8.2007 7:08pm
Jon Rowe (mail) (www):
This is great stuff.

It's not just liberals, btw, who appeal to "underlying principles" to reach results that may be inconsistent with the text of the Constitution. Indeed, sometimes the "underlying principles and original intent" converge to do exactly what Barnett is warning against.

I know this from studying Religion &the Founding, what I have been doing quite a bit lately. Justice Scalia in his book A Matter of Interpretation, rightly scolds the Holy Trinity case (the case notably for its "Christian Nation" dicta) where Justice Brewer looks to the "intent" of Congress to determine that Congress couldn't have meant what the text of the statute says it meant.

Similarly, I've heard it said that the word "religion" in the First Amendment only applied to the Christian sects. Well, the text doesn't say that. And the ratification debates on Article VI clearly show that the ratifiers knew that "religion" included all sorts of systems outside the Judeo-Christian tradition. And the key Founders like Adams, Jefferson, Franklin, Washington, and Madison arguably were downright universalists who believed that almost all world religions of which they were aware, like Christianity, were valid ways to God and taught the same morality necessary for social governance (they may have been wrong; but this IS what these Founders believed).

Justice Rehnquist once famously quoted Joseph Story on the "original intent" of the Establishment Clause. This passage also reflects one of the Establishment Clause's "underlying purposes."

"The real object of the [First] [Amendment] was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. . . ."

Out of this, some folks have concluded that Establishment Clause was intended only to forbid discrimination among the Christian sects. Nope. The text of the Constitution says nothing about the "Christian" religion, but religion generally. And ratification debates and the personal writings of our Founders show that when they used the word "religion," they applied it generically/universally.

Thus, any rights or restrictions that adhere to "religion" adhere to "religion" generally and not just the Christian religion.

Using Joseph Story's above quotation to argue that the Constitution originally only protected the Christian sects is a classic case of fishing for underlying principles and coming up with something that contradicts the Constitution's text.
1.8.2007 8:19pm