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. …