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.
Whichever theoretical justification one chooses to adopt, each accepts the premise that the Constitution, for it to be a constitution at all, must demand our obedience and our observation of its limits. And each requires an originalist interpretation of the constitutional text. As soon as the text is interpreted to mean different things at different times, there is no reason for that text to be binding for any given generation. An ever-changing text nullifies the idea of higher lawmaking, for it is precisely the wisdom of the Framers of the constitutional provisions which justifies obedience to them. A fluid text renders the precommitment theory hollow, because the rules of the game would change as judges chose to interpret those rules in new ways.
Furthermore, a fluid text admits of no natural rights justification for obedience to the Constitution, because natural rights principles require fixed limits on government that cannot change at the whim of those in power. What follows is that in order to be a constitutional government at all, the meaning of the words of the Constitution cannot change as our society evolves.
While Balkin recognizes that the Constitution functions as both “basic law” and “higher law,” these two functions do not give the Constitution (in his view) its most fundamental legitimacy. Rather, he believes that the Constitution must also serve as “our law,” and for it to be democratically legitimate, succeeding generations must put their own constructions on the constitutional text where the Framers have enabled them to do so through standards and principles.
Balkin argues that the Constitution “is premised on popular sovereignty,” and thus “the delegation of constitutional construction to later generations is crucial to the Constitution’s democratic legitimacy.” Balkin’s theory focuses so much on enabling future generations because for him, the Constitution cannot be legitimate unless it is democratically approved through successive acts of popular sovereignty—loosely to include the New Deal, the national security state, the civil rights movement, and the sexual revolution.
The Framers did indeed recognize the legitimacy of at least an initial act of popular sovereignty. But that does not mean that every generation must somehow re-ratify the Constitution. Thomas Jefferson famously suggested that there ought to be a constitutional convention every 19 years, a suggestion rejected vigorously by other Founders, such as James Madison and John Adams. They recognized the importance of a precommitment—or stability—in the Constitution, as well as a constraining higher law or natural rights function. Once we move away from the need to justify obedience to the Constitution through successive acts of popular sovereignty, it becomes far more important to interpret the Constitution as a constraining rather than an enabling document.
Balkin’s theory of enabling also flows from his optimistic view of history. He criticizes Scalia’s argument that the Constitution was meant to restrict democracy to prevent “rotting.” Balkin believes that the Constitution can be redeemed over time, that society can progress morally: “The very notion of aspiration presumes the opposite of [Scalia’s] narrative of decline. It presupposes that each generation should build on the past, and strive to do better than the previous ones did.” Thus, the Framers, who expected constitutional principles to be redeemed in the course of history, must have intended the Constitution to enable rather than constrain the future.
Balkin is right, in a sense: The Framers did expect that the Constitution would need to be amended, that it could be perfected in future generations. Two big moral developments which Balkin mentions are the end of slavery and the granting of women’s suffrage. Both of these developments, however, were cemented through the Article V amendment process. It is far less clear why we should consider the New Deal, the growth of the administrative state, or the movement to restrict states from contending with the sexual revolution in their own ways as progress. Certainly from a progressive’s perspective, such developments are desirable and a constitutional theory should be able to account for them. But if we take the Framers seriously, they may not have seen these developments as progress, and they may not be.
The truth is that the Framers intended the Constitution to be both enabling and constraining, and the Americans who ratified the Constitution understood it in those terms. They expected that society would be able to progress, and that if a supermajority of the states and the people’s representatives came to be more enlightened, they would enshrine these developments in the constitutional text itself.
While Balkin’s understanding of the role of standards and principles is sound, recognizing a more realistic view of history and the particular importance of the Constitution’s constraining function may lead to a far different America than the one Balkin approves of and aspires to. The Constitution will be no less legitimate as a result, because it is precisely for its constraining effect that we respect and admire it, and must choose to obey it.
Ilan Wurman is a student at Stanford Law School.