Originalism and Its Discontents (Plus a Thought or Two about Abortion)
Berman, Mitchell N., Constitutional Commentary
In Abortion and Original Meaning, (1) Jack Balkin presents an intriguing new argument for the soundness of the result, though not the reasoning, of Roe v. Wade. (2) Balkin is one of his generation's widest ranging and most consistently engaging legal theorists, and his analyses of the original principles undergirding the Fourteenth Amendment and how they bear on the debate over abortion is characteristically thought-provoking. But they are offered in service of a "larger purpose"--namely, "to demonstrate why the debate between originalism and living constitutionalism rests on a false dichotomy." (3) Once we "reject the assumption that fidelity to the [constitutional] text means fidelity to original expected application," Balkin contends, we ought instead to agree that "constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text." (4) In maintaining such fidelity, however, "[e]ach generation makes the Constitution their Constitution by calling upon its text and its principles and arguing about what they mean in their own time." (5) It follows, Balkin claims, that "[t]he choice between original meaning and living constitutionalism ... is a false choice." (6)
I believe that Balkin mischaracterizes contemporary originalism. Although Justice Scalia constitutes a striking--but possibly only partial--counter-example, an overwhelming number of contemporary constitutional theorists who actively defend originalism have already rejected the assumption that Balkin asks them to reject. While there does exist a live intramural disagreement among originalists concerning whether to abide by the originally intended meaning of the framers (or ratifiers) of constitutional text or the text's original public meaning, almost nobody espouses fidelity to the originally expected applications.
More important, though, is what follows once we all reject what Ronald Dworkin dubbed "expectation originalism." (7) Balkin's conclusion that originalism and non-originalism present a false choice rests squarely on his argument that fidelity to the Constitution requires fidelity to its original meaning and precludes contemporary interpreters from interpreting its text in accordance with other principles that the text can bear. (8) But nonoriginalists simply do not agree that fidelity to the Constitution requires fidelity to the original meaning "and the principles it was designed to enact." (9) And nothing in Balkin's article, I will argue, should convince them that what they see as a true choice is in fact a false one. In short, then, Abortion and Original Meaning is unlikely to make anybody happy: Its empirical claims about the state of originalist argumentation are apt to gall the originalists, while its normative (or perhaps conceptual) claims about what constitutional interpretation requires will fail to move the non-originalists. Part I of these remarks argues that theorists in both camps have reason to be dissatisfied.
Of course, even if Balkin's claims about interpretive theory fail, his narrower arguments about abortion rights might nonetheless succeed. Unfortunately, I do not believe that Balkin offers us a sounder basis upon which to rest the conclusion that legislative prohibition of abortion is unconstitutional. Part II briefly explains why.
I. ORIGINALISM AND LIVING CONSTITUTIONALISM
A. EXPECTATION ORIGINALISM: NOT A TRUE OPPONENT
According to Balkin, self-described originalists, along with their adversaries, believe that expected applications of constitutional provisions are binding on present-day interpreters. This, he argues, is an unsatisfactory view. I agree. (10) The question, though, is whether it's a live one. After all, the view was addressed at length a decade ago--and, I would have thought, demolished-in an important article by Mark Greenberg and Harry Litman. (11) As they explained, "original meaning, properly understood, must contemplate the possibility that a traditional practice is unconstitutional. …