Academic journal article Policy Review

Reading into the Constitution

Academic journal article Policy Review

Reading into the Constitution

Article excerpt

JACK M. BALKIN. Living Originalism. HARVARD UNIVERSITY PRESS. 474 PAGES. $35.00.

HOW FAR DO the president's powers reach in wartime? May the government restrict political expenditures by corporations and unions? Is it within Congress's authority to compel all people, on pain of paying a substantial fine, to purchase health insurance?

It is a remarkable fact about liberal democracy in America that left and right agree that to answer such hard questions we must consult the 224-year-old document that brought this country into being, and abide by what it requires, prohibits, and permits. And it is a prominent feature of our polarized politics that the quest to determine the Constitution's meaning concerning the great issues of the day excites vehement disagreement between left and right.

The two sides bring to the search for the Constitution's meaning competing theories. Progressives tend to view the Constitution as a kind of living organism that grows and develops, and should be adjusted or altered by courts in response to unfolding circumstances. Conservatives generally believe that however much circumstances may have altered, courts are bound by the Constitution's original meaning.

Both the doctrine of the living constitution and the doctrine of originalism derive support from common sense and from sober observation of liberal democracy in America. On the one hand, as living constitutionalists emphasize, times change, norms evolve, and some of the Constitution's clauses--the First Amendment prohibition on laws abridging freedom of speech, the Eighth Amendment prohibition on cruel and unusual punishment, the Fourteenth Amendment promise that no state shall deny any person life, liberty, or property without due process of law and no state shall deny any person the equal protection of the laws--seem to invite courts to apply open-ended terms such as "cruel and unusual," "speech," "due process," and "equal protection" in light of the best available understandings.

On the other hand, as originalists stress, the original meaning, or range of meanings, of constitutional provisions, serve as the starting point and anchor for analysis that properly regards the Constitution--as the Constitution proclaims itself to be--as the supreme law of the land; any congressional statute, presidential action, or state law that conflicts with the Constitution's original meaning should be rejected as unconstitutional; and by showing fidelity to the original meaning of the Constitution, which is the most authoritative statement of the people's will and reason, judges maintain courts' democratic legitimacy.

Contrary to much conventional wisdom in the legal academy, which sees the living constitution and originalism as diametrically opposed schools of constitutional theory, Jack M. Balkin, Knight professor of constitutional law and the First Amendment at the Yale Law School, sides with common sense and sober observation. The choice between living constitutionalism and the doctrine of original meaning, he argues, is a false one: "Properly understood these two views of the Constitution are compatible rather than opposed."

To vindicate this conciliatory claim, Balkin "offers a constitutional theory, framework originalism, which views the Constitution as an initial frame-work for governance that sets politics in motion, and that Americans must fill out over time through constitutional construction." Like originalists, Balkin insists on the need for "fidelity to the original meaning of the Constitution, and in particular, the rules, standards, and principles stated by the Constitution's text." But he believes that fidelity to original meaning also requires, in the spirit of living constitutionalism, the development of "constitutional constructions that best apply the constitutional text and its associated principles in current circumstances."

Balkin is certainly not the first progressive legal scholar to attempt to root his constitutional theory in the Constitution. …

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