Academic journal article Michigan Law Review

Jack Balkin's Rich Historicism and Diet Originalism: Health Benefits and Risks for the Constitutional System

Academic journal article Michigan Law Review

Jack Balkin's Rich Historicism and Diet Originalism: Health Benefits and Risks for the Constitutional System

Article excerpt

JACK BALKIN'S RICH HISTORICISM AND DIET ORIGINALISM: HEALTH BENEFITS AND RISKS FOR THE CONSTITUTIONAL SYSTEM Living Originalism. By Jack M. Balkin. Cambridge and London: Harvard University Press. 2011. Pp. 339. $35.

INTRODUCTION

Jack Balkin's Living Originalism1 is a sweet read. It is beautifully written, illuminating, and provocative. It is conducive to deep reflection about foundational questions.

In the book, Balkin reasons from two points of view-the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system (p. 130). First, he provides a systemic account of constitutional change, which he calls "living constitutionalism." Second, he offers an approach to constitutional interpretation and construction, which he calls "framework originalism." These two components-living constitutionalism and framework originalism-together constitute his overall theory of "living originalism."

Reasoning from the systemic perspective, Balkin develops an attractive theory of the processes of constitutional change. His account features prominently the roles of citizens, social movements, civil society, politicians, and judges in shaping the meaning of the Constitution in practice. His approach is descriptively more accurate than its main competitors and normatively appealing in its emphasis on the need for invested participants in the constitutional system to continuously perceive and vindicate the preconditions for the legitimacy of the system.

Balkin may, however, be too quick to dismiss a concern held by some invested participants. These participants fear "that arguing that their views are correct is . . . undermined . . . by the theory of how the constitutional system produces legitimacy over time" (p. 131). To understand from the systemic perspective that "we are . . . participants in a constitutional system in which dissent and contestation, persuasion and argument, help make the system democratically legitimate over time"2 is to acknowledge that the meaning of the Constitution in practice changes over time. It is, therefore, to stare the fact of interpretive discretion in the face.3 And facing up to the fact of discretion encourages consciousness of one's own consciousness, which may cause those who suffer from "modernist anxiety" to question whether they can be confident that their own constitutional views are correct.4 Such self-confidence, however, underwrites effective advocacy for those who do not consider themselves free to act as if they were certain they were right when they are, in fact, not certain.5

Reasoning from the individual perspective, Balkin provides a persuasive, if imperfect, account of the characteristic importance of constitutional text in the American tradition. But Balkin does not seem to register the potential consequences of turning to "originalism" given how long the term has been associated in public debates with a conservative political practice. A progressive declaration in 2013 that "we are all originalists now" would risk lending unintended support to the ongoing fruits of conservative originalism, including an unsettling of the New Deal Settlement, the Second Reconstruction, and more.

Such a development would be troubling not only from the perspective of progressive constitutionalists, but also from the perspective of the constitutional system. Those who either misunderstand Balkin or wish to repurpose him-as Balkin seeks to repurpose originalism-might use a progressive embrace of Balkin's very thin version of originalism to throw everyone into an easily caricatured originalist camp. That misappropriation, in turn, might undermine the diversity of constitutional opinion that exists in fact and that secures the legitimacy of the system as a whole.

Part I describes Balkin's "living originalism." It separates the theory into its component parts and then considers the theory as a whole. Part II analyzes some potential consequences of embracing Balkin's living constitutionalism. …

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