Faith and Fidelity: Originalism and the Possibility of Constitutional Redemption
Solum, Lawrence B., Texas Law Review
CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD. By Jack M. Balkin. Cambridge, Massachusetts: Harvard University Press, 2011. 304 pages. $35.00.
LIVING ORIGINALISM. By Jack M. Balkin. Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 2011. 480 pages. $35.00.
Contemporary scholarly debates about originalism and living constitutionalism are filled with claims about the political valence of these two theories. Here are some examples: "Originalism remains even now a powerful vehicle for conservative mobilization . . . ."1 "[L]iving constitutionalism . . . has been at the core of progressive constitutional thought since the 1970s."2 "[A]ny reasonably well-informed observer knows that the term 'living Constitution' encodes liberal sympathies, just as originalism encodes conservative ones . . . ."3 "[O]riginalism cannot easily be appropriated to progressive constitutional arguments."4 The conventional wisdom associates originalism with the right and living constitutionalism with the left.
But are these claims correct? Could there be a progressive constitutional theory that is consistent with the core premises of originalism? This essay will answer these questions with a focus on the views of Jack Balkin as they were developed in Constitutional Redemption5 and Living Originalism.6 Here is the roadmap. Part II will address the question, "What is fidelity to the original meaning of the Constitution?" by laying out a brief history of originalist theory, identifying the core of originalist thought, and then explicating the idea of constitutional fidelity. Part III will address the question, "What is faith in the possibility of constitutional redemption?" by explicating the notions of redemption, faith, and possibility. Part IV will then explore the widely held view that belief in progressive constitutional redemption is impossible, and will assess Jack Balkin's arguments for a reconciliation of progressive faith and constitutional fidelity. Part V concludes.
II. What Is Fidelity to the Original Meaning of the Constitution?
What is "fidelity" to the "original meaning" of the United States Constitution? And how does fidelity to the original meaning relate to the idea of a "living constitution"? These are not easy questions because the term "originalism" has contested and evolving meanings. We can begin to tackle these difficult questions by taking a look at the evolution of originalist constitutional theory. Once we understand originalism (or, more modestly, some of the core originalist ideas), we can proceed to an examination of living constitutionalism and then to the idea of constitutional fidelity.
A. The Evolution of Originalist Constitutional Theory
One of Jack Balkin's two recent books is titled Living Originalism, but what does the notion that "originalism" could be "living" really mean? Let us start with the term "originalism." Where does it come from and what does it signify? We do not know when the first oral use of the term occurred, but we do know that the first occurrence in legal databases was in an article by Paul Brest published in 1981.7 Brest had already used the term in a law review article published in 1980, which just missed inclusion in the Westlaw database.8 He seems to have coined the word9 and defined it as follows: "By 'originalism' I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters."10
Two features of Brest's definition warrant comment. First, Brest's definition is disjunctive: originalism is textualism or intentionalism. Second, this passage reveals that Brest assumed that his audience (primarily legal scholars) was already familiar with the interpretive approach that he named by coining the word "originalism." Many other scholars adopted Brest's new term of art; "originalism" and variations appear frequently in the law reviews from 1981 on. …