FROM THE BACK OF THE BOOK MARCH 15, 2012
By Jack M. Balkin
(Belknap Press, 474 pp., $35)
On the morning of July 14, 1967, Thurgood Marshall began his second day of Supreme Court confirmation hearings by preparing to confront questions posed by Senator Sam J. Ervin Jr. of North Carolina. This prospect seems unlikely to have been a pleasant one. After thirteen years in Washington, Ervin’s foremost achievement remained his role in drafting the document that had formally been styled a Declaration of Constitutional Principles, but that almost instantly became known as the Southern Manifesto. That document, which drew support from the overwhelming majority of Southern congressmen and senators, denounced the Supreme Court’s decision in Brown v. Board of Education as an abuse of judicial authority. “This unwarranted exercise of power by the Court, contrary to the Constitution, is creating chaos and confusion in the States principally affected,” the politicians complained. “It is destroying the amicable relations between the white and Negro races that have been created through ninety years of patient effort by the good people of both races. It has planted hatred and suspicion where there has been heretofore friendship and understanding.”
As the attorney who led the winning legal team in Brown, Marshall shouldered no small amount of the burden for this precipitous decline in race relations. It must have come as little surprise, then, that Ervin’s questioning demonstrated marked hostility toward Marshall’s nomination. But by 1967 Brown was sufficiently well on its way toward canonization that Ervin avoided directly asking Marshall about segregation in public schools, and instead concentrated his attention on the Warren Court’s decisions protecting criminal defendants.
But lurking not very far beneath the surface of Ervin’s questioning of Marshall was the Southern Manifesto’s primary objection to Brown: that the decision defied constitutional originalism. “The original Constitution does not mention education,” the Southern Manifesto noted. “Neither does the Fourteenth Amendment nor any other amendment. The debates preceding the submission of the Fourteenth Amendment clearly show that there was no intent that it should affect the system of education maintained by the States.” One need not listen especially hard to hear echoes of this notion in a question that Ervin pitched to Marshall at the hearings: “Is not the role of the Supreme Court simply to ascertain and give effect to the intent of the framers of this Constitution and the people who ratified the Constitution?” Although Ervin’s query was freighted with jurisprudential implications, Marshall’s response deftly sidestepped the danger. “Yes, Senator,” Marshall replied, “with the understanding that the Constitution was meant to be a living document.”
This long-forgotten riposte merits renewed attention, as Marshall managed forty-five years ago to approximate a constitutional theory that has recently become ascendant within liberal legal circles. After decades of attempts to slay originalism, some prominent scholars on the legal left have now begun to embrace the notion—or at least their particular conceptions of it. In so doing, these law professors typically make an intellectual move similar to Marshall’s, suggesting that the bitter dispute between originalists and living constitutionalists fundamentally rests on a false antithesis. In this vein, the title of Jack M. Balkin’s new book, Living Originalism, draws its punch by combining the two ostensibly oxymoronic terms. Balkin contends that “we do not face a choice between living constitutionalism and fidelity to the original meaning of the text. They are two sides of the same coin.” That is so, Balkin insists, because “properly understood, these two views of the Constitution are compatible rather than opposed.”
Owing to his close association with the American Constitution Society and his lengthy track record of producing consistently provocative scholarship that is also consistently left-leaning, Balkin possesses unimpeachable liberal credentials. Accordingly, his declaration in a law review article five years ago that he had—seemingly overnight—converted to originalism created quite a stir within the corridors of the legal academy. From the left, liberal critics accused Balkin of apostasy. From the right, conservative critics accused him of creating a false conversion narrative, asserting that Balkin actually aimed to co-opt originalism, not subscribe to it.
During the last five years, Balkin has dedicated much of his intellectual energy to a series of articles elaborating and refining his own account of the originalist enterprise. Living Originalism, the culmination of this work, succeeds in providing an endlessly engaging theory of constitutional law that wrestles with the field’s most urgent concerns in a way that accounts for nuance without sacrificing clarity. That is no meager achievement. Balkin’s book will likely serve as a focal point for constitutional theorists of various stripes for years to come. The volume’s prominence seems assured because it presents in an unusually acute form the fundamental question of whether any variety of originalism can provide what liberals want—and, significantly, what liberals in future generations will want—in a theory of constitutional interpretation.
FOR THE last few decades, of course, much of the legal left has derided originalism, contending that the method reduces the complex task of judging to an overly simplistic and faux-historical inquiry that would lead to intolerably retrograde decisions. Liberal scholars had their sights firmly trained on originalism even before Attorney General Edwin Meese III brought the issue out of the law reviews and into the national spotlight in 1985 by calling for a “jurisprudence of original intention.” But originalism has proved an elusive target, not least because it has often been on the move. After initially professing that their guiding light was the framers’ “original intent,” originalists next suggested that they were actually concerned with discerning the ratifiers’ “original understanding,” before settling, finally, on the constitutional text’s “original meaning” among the public. Primary among the manifold problems with the initial two formulations is the apparent requirement that constitutional interpreters peer into the minds of various historical actors, and the possibility that those actors may well have held competing rather than complementary conceptions—assuming the actors had formed any conceptions at all. Such inquiries invited an interpretive subjectivity—but that was precisely what originalism sought to diminish, if not to eliminate. By elevating original meaning as the hallmark, originalists meant to shift the focus away from what the framers and ratifiers thought and toward what they actually did, in the form of the constitutional text.
This elevation of the Constitution’s original meaning had the effect of inadvertently creating the potential for space between the expansive language that the framers often used and the specific results that the framers anticipated that their language would initially yield. Traditionally, conservative originalists have aimed to keep those two concepts yoked together as tightly as possible, suggesting that the framers’ “original expected applications” serve—in a very real sense—to define broad constitutional language. Thus Balkin explains that “even though conservative originalists may distinguish between the ideas of original meaning and original expected applications in theory, they often conflate them in practice.” In other words, Justice Scalia talks the original meaning talk, but he walks the original expected application walk.
Except, of course, when he does neither. Scalia tempers his brand of originalism with a heavy dose of stare decisis, the judicial principle that counsels respect for prior decisions. Even though Scalia’s legal philosophy would have precluded him from joining many revered judicial opinions were he deciding the cases in the first instance, stare decisis enables him to avoid demanding that these decisions now be overruled. But as Balkin perceptively observes, this reliance on stare decisis places Scalia in the unenviable position of viewing some of the Supreme Court’s most inspiring decisions as “unfortunate blunder[s] that we are now simply stuck with because of respect for precedent.” Balkin correctly contends that perceiving modern constitutional law “as a series of errors that ... would now be too embarrassing to correct” is itself an embarrassment for Scalia’s theory, as it “confuses achievements with mistakes.”
IN CONTRAST TO Scalia’s originalism, Balkin advocates what he labels “framework originalism.” This method, as its name suggests, views the Constitution as establishing a framework to govern society. In order to adhere to that framework, Balkin asserts, constitutional interpreters must demonstrate sensitivity toward the various types of linguistic constructions that the Constitution employs, some of which are extremely constraining and others of which are quite open-ended. As Balkin contends in a crucial passage:
The text of our Constitution contains different kinds of language. It contains determinate rules (the president must be thirty-five, there are two houses of Congress). It contains standards (no “unreasonable searches and seizures,” a right to a “speedy” trial). And it contains principles (no prohibitions of the free exercise of religion, no abridgements of the freedom of speech, no denials of equal protection). If the text states a determinate rule, we must apply the rule because that is what the text offers us. If it states a standard, we must apply the standard. And if it states a general principle, we must apply the principle.
Where determinate rules limit interpretive discretion, standards and principles invite interpretive choices. Scalia-style originalists err, according to Balkin, by treating the Constitution’s broad standards and principles as though they were in fact specific rules. “To stick to the [Constitution’s] plan and implement it,” Balkin writes, “we must respect its particular choices about freedom and constraint for political actors, about what it decides to determine through writing and what it delegates to the future through writing (or through silence).”
By using the relatively broad language of the Equal Protection Clause, for example, Balkin contends that the Fourteenth Amendment’s framers effectively delegated the Clause’s content to future generations. Had the framers sought to limit the Clause’s scope to racial considerations, Balkin observes, they would have done so, as occurred with the Fifteenth Amendment’s declaration that the right of citizens “to vote shall not be denied or abridged ... on account of race, color, or previous condition of servitude.” The failure to include such race-specific language in the Equal Protection Clause means, for Balkin, that it was consistent with the Constitution’s original framework for the Supreme Court to find that the Fourteenth Amendment protected women from state discrimination in the 1970s, even though women were not—to put the point mildly—regarded as the Amendment’s primary beneficiaries. Going further, Balkin contends that the Fourteenth Amendment “protect[s] homosexuals from discrimination even if nobody knew there were such things as homosexuals in 1868, or, if they knew what homosexuals were, would have opposed the extension of the principle to that social group.”
This elastic conception of original meaning generally enables Balkin to accommodate the constitutional understandings that legal liberals hold dear. But Balkin is sure to acknowledge that subscribing to framework originalism does not mean that any constitutional interpretation whatsoever is permissible. Constitutional interpretations that have the effect of “alter[ing] the hardwired features of the constitutional text,” he contends, are incompatible with framework originalism. Clear instances of forbidden constitutional interpretations would include, say, validating a thirty-four-year-old president, or upending the requirement that each state have two senators. Such interpretations would be illegitimate, Balkin suggests, because they would involve permitting broad principles to trump precise texts. “Framework originalism requires that constitutional constructions must be consistent with the text,” Balkin explains. “We may articulate and supplement the constitutional text through construction, but we may not contradict it. Thus, whenever we argue from principles underlying the text, we must always return to the text to check our arguments.”
IT IS SOMEWHAT unclear in Balkin’s account how precisely a constitutional text must be stated so that a constitutional interpretation can be viewed as “contradict[ing]” it, or as “alter[ing]” the document’s “hardwired features.” Although Balkin provides precious few examples of such constitutional texts, some of the examples that he offers contain considerably more indeterminacy than the example of the presidential age minimum. He cites, for instance, the Supreme Court’s jurisprudence regarding the Eleventh Amendment, which provides that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state.” Balkin views the Court’s current jurisprudence as violating framework originalism for interpreting that amendment to prohibit suits, among other things, by citizens against their own states. However strained that interpretation (and I believe it is very strained indeed), construing it as a contradiction suggests far from airtight requirements for finding textual determinacy. Balkin also contends that the notoriously muddy language of the Second Amendment would be contradicted by any effort to “confiscat[e] all privately held arms from the citizenry.” Even if the most persuasive interpretation of that Amendment would invalidate that measure, it is not clear that upholding the measure would inescapably contradict the text. Some distinguished legal scholars continue to maintain that “the right of the people to keep and bear Arms” should be read as subsidiary to the Amendment’s broader purpose of maintaining a “well regulated Militia.”
Notwithstanding this reading of the Second Amendment, Balkin repeatedly emphasizes that when liberals become framework originalists they need not sacrifice much (or, perhaps, anything) in the way of their preferred constitutional interpretations. Even the liveliest among the living constitutionalists, after all, do not really want to interpret the Constitution to permit thirty-four-year-old presidents. Although liberals have often rejected originalism on the ground that it amounts to being ruled by what Jefferson called “the dead hand of the past,” Balkin contends that “the dead-hand objection is not directed against original meaning—it is directed against original expected application. Once that distinction is accepted, living constitutionalists have very little reason to object to being framework originalists.”
But “very little reason” is not the same thing as no reason at all. Or is it? Balkin’s book, as is standard practice among the recent liberal converts to originalism, persistently disregards instances where adhering to his methodology risks placing items on the liberal constitutional agenda out of reach. The reticence on this point is somewhat confounding, because identifying areas of divergence between one’s constitutional views and one’s political views has previously proven quite forceful in convincing the American public that a constitutional theory is not merely politics by other means.
When Justice Scalia is out on the jurisprudential hustings, he gets a great deal of mileage from citing decisions in which his constitutional vision supposedly compels him to vote in ways that he finds politically unattractive. Scalia has cited to particular effect his vote in Texas v. Johnson, where he joined the Court’s opinion that invalidated laws prohibiting flag-burning in 1989. “Scalia did not like to vote that way,” Scalia has said, using the third-person form that is usually reserved for monarchs and professional athletes. “He does not like sandal-wearing, bearded weirdos who go around burning flags.” Never mind, of course, that no evidence suggests that people in 1791 ever dreamed that the freedom of speech would one day successfully be invoked to protect flag-burning. Unlike his liberal counterparts, though, Scalia understands that sometimes rhetoric beats logic.
LIBERAL ORIGINALISTS may genuinely believe that their theories take nothing meaningful off the table. Part of the reason that they could believe this may be attributable to the liberal penchant for focusing on what Justice Robert Jackson long ago referred to as the Constitution’s “majestic generalities,” such as “freedom of speech,” “due process,” and “equal protection.” Liberals have a related tendency, though, to overlook what might be termed the Constitution’s ignoble specificities—those portions of the nation’s founding document that textually memorialize notions that many people now regard as loathsome.
Before jumping headlong onto the framework originalist bandwagon, liberals should thoroughly contemplate how these ignoble specificities may be widely understood to prohibit otherwise permissible constitutional interpretations. To the extent that liberal originalists do not understand such ignoble specificities as confining, they should explain in detail how they arrive at those conclusions. Doing so would enable people to examine the theory in action under pressure, and allow them to make a more informed determination of whether they wish to sign up for the program. Ignoring the Constitution’s inconvenient text, however, will not succeed in making it disappear.
Balkin’s treatment of the Fourteenth Amendment provides an illustration of how liberal originalism tends to obscure the Constitution’s ignoble specificities, at least two of which reside in that typically exalted portion of constitutional text. “Section 1 of the amendment is the most familiar to us today: its first sentence offers a fairly clear and determinate rule for citizenship, which was added at the last minute,” Balkin writes. “But most of section 1 is written in abstract and vague language that employs standards and principles. It speaks of ‘privileges or immunities of citizens of the United States,’ ‘due process of law,’ and ‘equal protection of the laws.’” This abstract phrasing was, Balkin maintains, hardly accidental. “The framers of the Fourteenth Amendment understood section 1 as a statement of general principles, and they wanted to leave open certain questions ... to a later time.”
But just as the framers “deliberately us[ed] language containing broad principles,” they also deliberately used language explicitly affirming the legitimacy of capital punishment—a point that Balkin neglects to mention. The Fourteenth Amendment’s Due Process Clause provides that states shall not “deprive any person of life, liberty, or property, without due process of law.” (The italics are mine, of course.) This language mirrors the Due Process Clause of the Fifth Amendment, which contains additional language indicating that no person shall be held to answer for a capital crime without being indicted by a grand jury. These three textual acknowledgments of the death penalty may lead at least some framework originalists to conclude that they must reject a claim contending that capital punishment categorically violates the Eighth Amendment’s prohibition on cruel and unusual punishments. That legal argument might be understood as relying upon a broad principle to contradict the constitutional text, something that is forbidden by framework originalism.
It is certainly true that nothing in the Constitution states in a firm rule: “States must permit capital punishment, both now and forevermore.” But the argument would not run that states must inflict the death penalty even if they do not want to do so, only that states may not be prohibited from doing so, provided that they follow the requirements of due process. And specific constitutional text lends support to that argument. The framers did not merely expect that the death penalty was constitutional; they also reduced that expectation to writing, an action that the framework originalist must view as momentous.
Balkin’s analysis of section 2 of the Fourteenth Amendment similarly elides another of the Constitution’s ignoble specificities. “With the glittering generalities of section 1 contrast the more rule-bound and hardwired features of sections 2, 3, and 4,” Balkin writes. “Section 2 finesses the problem of black suffrage in a compromise: states that denied black men the right to vote would have a proportionate share of their populations uncounted for purposes of calculating representation in the House and in the Electoral College.” Yet that summary of section 2’s compromise is distressingly incomplete, as it omits the provision regarding felon disenfranchisement. Section 2 provides that states would not have their political representation reduced if they denied or abridged the voting rights of people “who participat[ed] in rebellion, or other crime.”
With this provision in mind, surely some constitutional interpreters who elevate text above all other considerations conclude that states may continue to disenfranchise convicted felons—even after they have completed their sentences and their paroles. Indeed, rather than stemming from some law professor’s far-fetched hypothetical, the Supreme Court issued a decision precisely along these lines in Richardson v. Ramirez in 1974. Even though the Supreme Court had relied upon the Fourteenth Amendment’s Equal Protection Clause to invalidate numerous voting restrictions in the years leading up to Ramirez, it drew the line at laws disenfranchising some of society’s most reviled citizens. “The exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were [recently] invalidated,” the Court reasoned. Refusing arguments contending that the Fourteenth Amendment’s surrounding history and the purpose of the underlying text should be heeded, the Court concluded that section 2 “is as much a part of the Amendment as any of the other sections, and how it became a part of the Amendment is less important than what it says and what it means.” Those words, in certain contexts at least, would cause framework originalists to swell with pride.
This is not the occasion to catalogue the Constitution’s full complement of ignoble specificities. Nor would such a cataloguing, in any event, ever be complete. Today’s commonplace has a persistent habit of becoming tomorrow’s outrage. But it is incumbent upon the leftleaning originalists to endeavor to articulate which current liberal priorities their theory of constitutional interpretation might plausibly be thought to imperil. Even if they can conceive of some fancy legal footwork that averts the textual dangers, they should nevertheless demonstrate the moves. That way, the scholarly community and the public more broadly would have a firmer grasp of what framework originalism actually entails.
LARGE OVERARCHING reasons should also caution legal liberals to think long and hard before they rush into originalism’s warm embrace. It is appropriate to contemplate how the liberal move toward originalism may play with the public, because originalism has, in a shockingly short period of time, dramatically altered the terms of public constitutional discourse. In 1987, Laurence Tribe could dismiss originalism as nothing more than a “buzzword,” but in 2005, on the twentieth anniversary of Meese’s cri de coeur, Tribe allowed that the buzz had not yet abated. Indeed, if anything, it had grown louder. “Meese was successful in making it look like he and his disciples were carrying out the intentions of the great founders, where the liberals were making it up as they went along,” Tribe said. “It was a convenient dichotomy, very misleading, with a powerful public relations effect.”
More than a quarter of a century has now elapsed since Meese’s speech, and legal liberals are still attempting to gain a firm foothold in their effort to advance a compelling constitutional vision to the public. As Tribe’s comment suggests, the liberal move toward originalism may well have been nearly irresistible. Yet it seems highly implausible that the American public is poised to recognize the various liberal strains of original meaning originalism as having much of anything at all to do with originalism—at least as that term is now widely understood. Not everyone, it is vital to remember, keeps abreast of the latest academic debates unfolding in the pages of the Yale Law Journal. And by that I do not mean that they have fallen a few issues behind.
Claiming that the Constitution’s original meaning protects, say, the right to same-sex marriage would strike many of the uninitiated as a punchline rather than as a serious effort at constitutional argument. Even citizens who may otherwise support constitutional protections for such unions might be tempted to smirk when the argument appears clad in this unconventional garb. Indeed, many people who initially hear progressive constitutional views being articulated with originalist rhetoric seem likely to conclude that such articulations are intentional efforts to muddy the waters, and to render terms meaningless. Legal liberals, these observers may conclude, have resorted to dirty tricks to compete because they cannot win a fair fight. Balkin, for his part, has disavowed ulterior motives, proclaiming that he “did not become an originalist to hoist conservatives by their own petards.” There is no reason to doubt his sincerity on this point. But the need for the proclamation speaks volumes. Whatever the correct path to reviving legal liberalism in the public sphere, it seems unlikely to begin with allegations of opportunism.
If the liberal adoption of originalism’s terminology becomes much more widespread, it also could have the subtly corrosive effect of suggesting that originalism provides the only legitimate method of constitutional interpretation. That statement may sound overheated, but it surely bodes ill that constitutional law professors across the ideological spectrum already often divide the world into “originalists” and “non-originalists.” Yes, liberals often mean something distinct from conservatives when they invoke the term original meaning. But there is no guarantee that the liberal conception of originalism will carry the day in the public square, especially if its philosophical heresy seems designed to secure its political orthodoxy. Indeed, given the narrow way that many lay people currently understand the term originalism, such an outcome seems a remote possibility. And if the original version of originalism were to succeed in becoming the only game in town, an awful lot will have been lost.
Justin Driver is a contributing editor for The New Republic. This article appeared in the April 5, 2012 issue of the magazine.