Original Meaning and Constitutional Redemption
Balkin, Jack M., Constitutional Commentary
One of the many benefits of having one's ideas analyzed by a group of intelligent and able commentators (1) is that they improve the work by showing the author which parts of the argument need to be clarified, which parts need to be adjusted, and which parts are really central to one's views. With gratitude for their careful attentions, I take this opportunity to clarify, adjust and foreground parts of my argument in Abortion and Original Meaning. (2)
In Abortion and Original Meaning I argued that fidelity to the Constitution requires fidelity to the original meaning of the constitutional text and to its underlying principles. I also argued that each generation makes the Constitution their constitution by calling upon its text and principles and arguing about what they mean in their own time. These claims are part of a larger argument about what makes our constitutional system legitimate and what functions a constitution like America's serves and should serve. In this response, I argue that a key element of constitutional interpretation is our attitude of attachment to the constitutional project and our beliefs about its ultimate trajectory. This is the question of our faith in the constitutional system, which is also, as I shall explain, a faith in its redemption through history. Hence my theory of text and principle is also a theory of redemptive constitutionalism.
I. WHY ORIGINAL MEANING?
In Abortion and Original Meaning I argued that the choice between originalism and living constitutionalism is a false one, and that I regard myself both as an originalist and as a living constitutionalist. That may seem strange to some readers, who have grown accustomed to thinking that living constitutionalism is just a form of non-originalism. However what we call "nonoriginalism" depends on what we think originalism entails? Given any particular version of originalism, non-originalism means only that we reject that originalist's view of what fidelity to the Constitution requires. Now I argue that fidelity to the Constitution means fidelity to the original meaning of the Constitution's text and to the principles that underlie the text. From my perspective, then, a non-originalist is a person who argues that we do not have to be faithful to the original meaning of the Constitution's text or to its underlying principles. But living constitutionalists need not be non-originalists of that sort, and, in my view, they should not be.
Several of the commentators objected that I did not provide an argument for interpreting the Constitution according to its original meaning, or indeed, for any form of originalism at all. In fact, I did make such an argument, but it was stated so briefly that it may have passed notice. (4) Therefore I now offer a more extended argument for adhering to the original meaning of the text.
A. THE ARGUMENT FROM A WRITTEN CONSTITUTION
The American Constitution is a written constitution, and it is enforceable law. Both of these facts are worthy of note. Americans did not have to choose a written constitution. The most obvious model in 1787 would have been the British Constitution, which consisted largely of customary practices and precedents. In addition, the American Constitution did not have to be enforceable law. It could have been just be a political statement of principles, like the Declaration of Independence. But if we consider our written Constitution to be law, then we should interpret and apply it as we do other kinds of laws, and, in particular, statutes. This has two consequences.
First, generally speaking, once statutes are legitimately enacted by those authorized to enact them, the statutes continue to bind us as laws until they are amended or repealed. That is so even though the people who originally had authority to create the laws are long dead and gone. That is why even statutes passed many generations ago are still law today. I do not argue that this is necessary to the conception of law. …