Ilan Wurman

The battle between originalism and living constitutionalism has been waged in law schools and the public at large since the 1970s, and many liberal constitutional scholars have since hoped to strike the death knell of originalism as a viable constitutional theory. 

First, they claimed that it is impossible to know the Framers’ intent when the Constitution is properly seen as a bundle of compromises, leading to a move from “original intent originalism” toward original public understanding or meaning. Then they claimed that originalism still could not account for why originalist judges decide to adopt certain precedents—like the New Deal, the national security presidency, or the civil rights movement—which are arguably inconsistent with originalism, but which judges cannot unravel in today’s political reality. Yet very few scholars have attempted to strike the fatal blow as Jack M. Balkin attempts to do here: He argues that if one properly understands the Framers’ intent, and also the language and structure of the Constitution, then an originalist understanding of the Constitution leads to living constitutionalism. To Balkin, a living constitutionalist is the true originalist. 

Balkin’s theory is deeply thought-out and Living Originalism is well-written and engaging. And because it argues on originalists’ own terms, it must be taken seriously. Its fundamental argument is that the Constitution is written in three separate kinds of clauses—rules, standards, and principles—and that, while the constitutional rules are fixed (such as the requirement that the president be at least 35 years old), the Framers left the text’s standards, and especially its principles, to be fleshed out by future generations. Balkin argues that the Framers intended the Constitution to “enable” politics; that is, to enable future generations to put their own glosses on the Constitution, rather than to constrain them to avoid (as Justice Scalia has said) the possible rotting of American society and politics. 

Before we can evaluate which originalist theory is more correct—Balkin’s or the original-meaning/intent originalism—one needs to understand why any kind of originalism is the correct mode of constitutional interpretation. The answer is deceptively simple, and Balkin seems to understand it: No alternative creates a strong claim to obey or venerate the Constitution. What follows from this proposition is that a non-originalist reading of the Constitution leaves no persuasive reason for us to obey it—and therefore encourages, even if unconsciously, ignoring constitutional limits on government. 

There are a few possible theories as to why we ought to have a constitution, and, thus, why we ought to obey the Constitution. Each loses force when judges stop giving effect to the Constitution’s words through interpretations other than originalism. The first theory is that a constitution might reflect a period of heightened democratic awareness which, in turn, would lead to “higher lawmaking,” the content of which should, because of its wisdom, be beyond the reach of normal legislative processes. Balkin believes that the Constitution does serve as “higher law,” but what he means by the term is that the document serves as a statement of higher principles to be redeemed over the course of American history. 

A second theory is that perhaps a constitution represents a “precommitment” to a particular system by which we must abide simply because some initial commitment is necessary to establish the “rules of the game.” Balkin recognizes this as the “basic law” function of the Constitution. 

Third, though Balkin does not consider this theory, perhaps obedience to the Constitution can be best justified on the first principles of natural rights. The argument might go as follows: We must abide by the Constitution because otherwise its very structure—which attempts to reconcile the tension between enabling a democratic government and protecting against its evils—necessarily collapses in favor of pure democracy. And once it collapses, the entire natural rights edifice on which the Constitution was created loses effect. So it is the principles of natural rights that demand adherence to our particular Constitution, which in turn gives expression to those principles.

This is not a theory that renders the Constitution self-evidently binding; rather, we the people must understand that if we are to attain a just form of government, we can only do so by willingly obeying the limitations on ourselves as dictated by natural rights theory. In short, we must choose to obey the Constitution because doing so is just.