Barnett, Randy E., Constitutional Commentary
In his article, Abortion and Original Meaning, (1) Jack Balkin makes the startling disclosure that he is now an originalist. "[C]onstitutional interpretation," he writes, "requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. The task of interpretation is to look to original meaning and underlying principle and decide how best to apply them in current circumstances. I call this the method of text and principle." (2)
This is big. Jack Balkin is one of the most consistently creative and innovative progressive constitutional law theorists of our day. That he has been pulled by the gravitational force of originalism is a major development. I know what that force feels like.
MY PATH TO ORIGINALISM: LYSANDER SPOONER
All the time I was doing my earliest writings on the Ninth Amendment and the Second Amendment, I considered myself a nonoriginalist. I concurred with the standard criticisms of originalism that were widely accepted by constitutional scholars: interpreting the Constitution according to the original intentions of the Framers was impractical, illegitimate, and contrary to the intentions of the Framers themselves. Nevertheless, I continued to research and write about the original meaning of the text, which continued to seem salient to me and many others.
Then, quite by serendipity, I came across a reference to Lysander Spooner's 1845 book, The Unconstitutionality of Slavery, (3) in an anthology edited by Sandy Levinson. (4) Having been a fan since college of Spooner's 1870 essay, No Treason: The Constitution of No Authority, (5) my curiosity was piqued. When I looked at Spooner's monograph on slavery, I discovered an approach to constitutional interpretation I had not before considered.
Spooner was responding to the argument of the Garrisonian abolitionists that the Constitution was "a covenant with death and an agreement with hell" because it sanctioned slavery. In particular, he was answering a pamphlet by radical abolitionist lawyer Wendell Phillips entitled, The Constitution: A Pro-Slavery Compact. (6) Phillips had presented excerpts from the recently-disclosed notes of the constitutional convention by James Madison as proof that the Framers had intended to protect the institution of slavery in several passages of the Constitution, passages that seem to allude to the matter without using the term "slavery" or "slave."
In reply, Spooner maintained that the Constitution should be interpreted according to its public meaning at the time it was enacted. As Spooner argued:
We must admit that the constitution, of itself, independently of the actual intentions of the people, expresses some certain fixed, definite, and legal intentions; else the people them selves would express no intentions by agreeing to it. The instrument would, in fact, contain nothing that the people could agree to. Agreeing to an instrument that had no meaning of its own, would only be agreeing to nothing. (7)
How then is the Constitution's meaning to be determined? "[T]he only answer that can be given," Spooner concluded:
is, that it can be no other than the meaning which its words, interpreted by sound legal rules of interpretation, express. That and that alone is the meaning of the constitution. And whether the people who adopted the constitution really meant the same things which the constitution means, is a matter which they were bound to settle, each individual with himself, before he agreed to the instrument; and it is therefore one with which we have now nothing to do. (8)
Any secret intentions not embodied in the text itself were not binding on later interpreters:
The intentions of the framers of the constitution... have nothing to do with fixing the legal meaning of the constitution. That convention were not delegated to adopt or establish a constitution; but only to consult, devise and recommend. …