Positive Liberty

Randy Barnett has an interesting post about Jack Balkin’s apparent conversion from legal realism to originalism. Barnett has written a review of Balkin’s law review article entitled Original Meaning and Abortion. As I think about it, speaking of a conversion from legal realism to originalism is an inaccurate description of Balkin’s views. In his original article, Balkin in fact argues that the “choice between original meaning and living constitutionalism” is “a false choice.” I tend to agree with him; at the very least, I think they are more compatible, when properly understood, than many recognize.

It is important to note the ways in which the originalism of Barnett and Balkin differs from the originalism of Bork and Scalia. Barnett writes:

Balkin sharply criticizes the originalism of Justice Scalia, and others, who limit original meaning to the “expected applications” of the more abstract provisions to the problems of the day, and who then qualify their commitment to originalism to avoid objectionable results by selectively adhering to nonoriginalist precedents. Although Justice Scalia deserves tremendous credit for shifting the focus of originalists away from Framers’ and ratifiers’ intentions to the public meaning of the text, in my view, Balkin’s critique is telling and correct. Unlike the process of
determining original public meaning, in all but the rarest of cases,20 limiting the more abstract provisions of the Constitution to their “expected application” is not an historical question. It calls instead for us to ask, how the Framers would have expected the text to apply to concrete cases, which is a counterfactual rather than a factual inquiry. I have dubbed this approach “channeling the Framers.”

This is a very important distinction. Many of the provisions of the Constitution, particularly those found in the Bill of Rights, around which so many of our court battles revolve, are written in a very general language. Even where the language appears to be unequivocal, we all recognize inherent limitations on them; for example, though the first amendment clearly says that Congress shall make no law abridging freedom of speech, we recognize as legitimate a whole range of such abridgments in cases such as libel or fraud.

The 14th amendment is a perfect example. What exactly does it mean to say that no state shall deny to any citizen “the equal protection of the laws”? We cannot merely look to the expected application of that provision by the men (all men, of course) who wrote the amendment, we must look to the logical application of the principles embodied in the text. As I’ve written many times, the men who framed the 14th amendment explicitly denied that the text would render laws against interracial marriage unconstitutional. The Court, on the other hand, applied precisely that provision in striking down such laws, and even the staunchest originalist would not dispute the wisdom or validity of that ruling.

Barnett notes that Balkin refers to his version of originalism as a text plus principles approach:

Balkin’s “text and principle” approach to originalism is, he contends,

“faithful to the original meaning of the constitutional text, and the purposes of those who adopted it. It is also consistent with a basic law whose reach and application evolve over time, a basic law that leaves to each generation the task of how to make sense of the Constitution’s words and principles. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution’s guarantees.

This is very much the approach I have long favored and very similar to what Barnett terms “liberal originalism.” There is much more in Barnett’s review, and in Balkin’s original article to which it responds. Those who are interested in such questions should spend an hour or two reading both.