The Progressive Political Power of Balkin's "Original Meaning"
Johnsen, Dawn E., Constitutional Commentary
Jack Balkin's Abortion and Original Meaning should be widely read and debated, not only by constitutional theorists but by a broad range of those who care about his subject: how the United States interprets its foundational document. How should those who are part of that interpretive enterprise--from federal judges to "we the people"--go about the process of defining our core constitutional principles and who we are as a nation? And how should that interpretive process apply to one of the most controversial issues of the day, abortion?
Constitutional theory, of course, is the subject of an enormous scholarly literature, and others have agreed with Balkin that the Constitution is both binding law that requires fidelity (over preferred policy outcomes) and "living" in its application to changing times. One obvious question for Balkin--and for anyone writing in the area--is what he adds to the existing literature. By standard measures familiar to legal academics, he contributes much: a jurisprudentially strong interpretive theory that emphasizes the centrality of original meaning from what can be described as a progressive perspective. Fidelity to the Framers does not require, as some originalists suggest and some progressives fear, freezing constitutional norms to the narrow original expectations of the Framers. Nor does a living Constitution approach require disregarding the Framers' original meaning.
This comment, though, explores a more unorthodox and indirect contribution: the articulation of a progressive interpretive methodology that is not only strong jurisprudentially, but that also offers the potential for relatively broad accessibility and political efficacy, for the Constitution outside the courts and the constitutional influences of social movements. In a working democracy, constitutional theory has import beyond academia. That import is particularly pronounced at a time when influential elected officials continue a decades-long assault on "activist" judges, with charges that those who protect constitutional rights and liberties seek illegitimately to "make" (as in "make up") rather than "interpret" law. The nation has special need for prominent scholars who can develop and explain principled constitutional theory in popularly accessible and politically effective terms. Balkin's prior work establishes his preeminence in this regard, and this latest article brings his abilities to the pressing and enduring issues of the role of original meaning and the constitutional status of abortion bans.
The issues of originalism and abortion illustrate that academics on the ideological right have excelled at reaching beyond academic circles to shape politics and public policy. As Professors Robert Post and Reva Siegel have recently observed, the extensive scholarly criticism of originalism since its rise in the 1980's, while impressive on its own terms, is incomplete in its inattention to the actual terms of originalism's remarkable successes. (1) The literature exposes the deficiencies of originalism as an interpretive methodology, most notably its inaccuracies and inconsistencies, and quite convincingly devastates its jurisprudential claims. Yet originalism's enormous influence has come less as a theory of jurisprudence than as a highly persuasive political ideology that inspires passionate political engagement. The right uses both originalism and abortion to far greater political advantage than public opinion polls would predict, including to impugn the constitutional fidelity of "nonoriginalists" and supporters of Roe v. Wade. (2)
Progressives will benefit from Abortion and Original Meaning, whether or not they are steeped in constitutional theory. As they read, they will feel their spirits soar and at times will silently (perhaps audibly) cheer. They will be empowered as Balkin provides deepened understanding and improved ways of articulating their constitutional views. Balkin eloquently demonstrates that progressives, no less than originalists of the traditional stripe, care about fidelity to the constitutional text, adherence to constitutional principle, and respect for the intent of the Framers of that great document. …