Original Interpretive Principles as the Core of Originalism
McGinnis, John O., Rappaport, Michael B., Constitutional Commentary
Abortion and Original Meaning is a powerful article that is sure to have resonance in the field of constitutional interpretation. Professor Balkin undertakes what many previously would have thought a conjuror's trick: he attempts to locate the constitutional right to abortion, the poster child for imposition of the judiciary's own idiosyncratic values, in the original meaning of the Constitution. And he seeks to accomplish this feat by purporting to show how the theory of the living constitution is really an orginalist theory, once original meaning is properly divorced from the framers and ratifiers' expectations of how the provisions would be applied--what Balkin calls "original expected applications."
As such, the article has great strategic value: it attempts to appropriate for the living constitution philosophy the intellectual capital and public respectability that originalism has earned recently in the academy as well as the wider world. Even more boldly, it brands those who have claimed to be originalists as heretics to the true religion, on the ground that their focus on the original expected applications kills the document's vitality. By contrast, Balkin claims that his focus on the principles of the original meaning gives it life.
In our view Balkin presents a false dichotomy--either embrace abstract principles whose meaning is almost infinitely malleable or confine the Constitution to the applications the Framers imagined. We believe there is a middle way that is also a better way. Under this view, the Constitution's original meaning is informed by, but not exhausted by, its original expected applications. In particular, the expected applications can be strong evidence of the original meaning. Moreover, reasonable people at the time of the Framing likely embraced such principles of interpretation and, as we shall show, it is their principles of interpretation that should guide the content of originalism, not Balkin's or anyone else's exegesis of the essence of true originalism.
In this brief reply we first argue that Balkin lacks a strong justification for following originalism of any kind. We also show that the best justification for originalism--that originalist interpretation is most likely to lead to good consequences--suggests that one should follow the principles of interpretation that a reasonable person at the time of the framing and ratification thought would be applied to the Constitution. Applying different principles severs the Constitution from the process which ensured that the Constitution had consensus support, and it is that consensus support that is the best guarantee of the Constitution's contemporary beneficence. Second, we briefly address the role of precedent in constitutional originalism. While Balkin suggests that reliance on precedent is a problematic move for originalists, we argue that the original meaning of the Constitution allows for the use of precedent.
Finally, we show that a reasonable person at the time of the Framing was more likely to have embraced interpretative principles that considered expected applications than Balkin's abstract "originalist" principles. In a short comment, we confine ourselves to brief outlines of two important points. First, people at the time of the enactment of the Constitution would have been unlikely to eschew expected applications because such applications can be extremely helpful in discerning the meaning of words. (1) Balkin's disregard of expected applications discards important information that would impede Balkin from reaching the results he desires. Second, risk-averse citizens would be unlikely to adopt interpretive principles of the kind Balkin advocates--a kind of free-form textualism glossed by the meaning which social movements of each generation give to the text. Such principles carry a great deal of risk, because they do not protect the nation against the effects of social movements that pursue undesirable policies. …