The Perpetual Anxiety of Living Constitutionalism

By Leib, Ethan J. | Constitutional Commentary, Summer 2007 | Go to article overview

The Perpetual Anxiety of Living Constitutionalism


Leib, Ethan J., Constitutional Commentary


It certainly seems like the originalists are winning. Professor Jack Balkin--finding that he couldn't beat 'em--joined them. (1) Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote "we are all living constitutionalists now." (2) 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. (3) Still, don't count living constitutionalism out of the game just yet--and don't think one can embrace Balkin's approach and a true living constitutionalism at the same time.

We have before us in Balkin's new constitutional theory a lefty originalism to join another prominent conception of the same propounded by Balkin's colleague, Akhil Amar. (4) Lefty originalism, however, is not some new Yale invention. (5) Hugo Black and John Hart Ely might be part of its old guard. Still, Balkin's coming-out as a lefty originalist now self-consciously aims to bury living constitutionalism as an independent theory and disarm its power. Balkin tells us that the choice between "originalism" and "living constitutionalism" is overdrawn and "rests upon a false dichotomy." He argues that we must maintain fidelity to the original meaning of the document--but that fidelity is achieved by committing to the original meaning of "text and principle" rather than to the "original expected application" of those texts and principles. The former is "binding law" and the latter is not. Once we embrace this distinction, Balkin contends, we can retain the flexibility and adaptability that underwrites what he takes to be living constitutionalism's agenda and simultaneously pledge allegiance to an original meaning originalism. His final result is an impressively original and respectably originalist defense of abortion rights under the United States Constitution.

But why are the Constitution and its original principles binding, again? And is living constitutionalism really dead after Balkin's coup de grace (or is it a coup d'etat)? An anxious approach to the first question should lead to a negative answer to the second. In short, living constitutionalism's core animating anxiety is that the Constitution (and most especially its original meaning) may not be binding--and that anxiety leads to interpretive mechanics that are fundamentally in tension with the interpretive mechanics that originalists prefer. (6) On this important measure, Balkin is now an originalist through and through; and living constitutionalism remains alive as a real alternative. Living constitutionalism is more than a pedestrian desire for flexibility and adaptability, an excuse for nominally liberal results, and an attempt to have a "conversation between the generations" about vague and ambiguous clauses in the Constitution.

I want to focus here on a relatively underdeveloped aspect of Balkin's paper: his quick dismissal of living constitutionalism and his underlying assumption that living constitutionalists will be able to embrace his approach without difficulty. To be sure, many originalists will read Balkin to be a living constitutionalist in disguise--and may not let him into their club, notwithstanding his bona tides as an adept historian of the Fourteenth Amendment. But my main thesis here is that Balkin should no longer be welcomed by the living constitutionalists, despite his claim to be meeting their fundamental needs. (7)

Balkin's discussion engages originalists, first and foremost. Although he devotes substantial effort to rejecting an "original expected applications originalism," he still aims to demonstrate his street credibility as an originalist. Indeed, living constitutionalists get little more than a passing mention in Balkin's paean to original meaning. We get no real flavor of what a coherent account of living constitutionalism might look like--nor how Balkin's approach might leave living constitutionalists satisfied that his unifying theory meets their concerns. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Perpetual Anxiety of Living Constitutionalism
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.