Living Originalism

By Jack M. Balkin

I was also assigned this book for my Constitutional Theory Seminar during my first semester of my 2L year at Yale Law. I had to think a lot about it for class, and write a discussion post for my fellow students to read. My thoughts are reproduced below:

Last week Professor Griffin (at least, I think it was Professor Griffin; please forgive me if it wasn’t) raised the point that he was unsure where Professor Balkin’s definition of “interpretation” stopped and where his view of “construction” starts. At the time I agreed, but I didn’t say anything because I don’t have tenure at a fancy university—or even a law degree or any other advanced degree for that matter—and I hadn’t finished the book yet, so I didn’t feel like I could make any sort of well-grounded claims about the full theory presented in Living Originalism. Well, I still don’t have a law degree, or a Master’s or PhD in Political Science, or even a tenure track position at even a just-ok university, but I have finished the book, so I’m going to make the argument anyways. To rip off Mark Twain, please forgive me for the length of this essay; if I was a better writer I would have written something shorter, but, times being what they are, I had to write this.

On page 4, Professor Balkin lays out the foundational definitions for interpretation and construction: interpretation is “the ascertainment of meaning,” and construction is “implementing and applying the Constitution using all of the various modalities of interpretation: arguments from history, structure, ethos, consequences, and precedent.” My understanding is that interpretation (specifically what Balkin calls interpretation-as-ascertainment) is a relatively objective phenomena—in short, the words of the Constitution, presumably, do mean something specific. It would be incorrect interpretation to argue that “domestic violence” in the Constitution refers to a husband hitting his wife. Conversely, construction (specifically interpretation-as-construction, which I understand most of the book to be focusing on) is much more of a normative phenomena—once we’ve got a basic, shared understanding of how the text and principles of the Constitution are to be interpreted (and we can do this by seeing what the text says and investigating how the text was interpreted when it was written), we move on to arguing about how they ought to be applied to the real world via constructions (judicial opinions, institutions, etc.)

Armed with those definitions, I want to skip ahead to chapter 10. In this chapter, I understand Balkin to be making an argument that the 14th Amendment has been incorrectly interpreted (pp. 191). The Privileges or Immunities Clause specifically has been interpreted by the courts to have a very narrow application, and so the principles for which the 14th Amendment stands (Liberty and Equality in their most abstract, open-to-construction senses) have been read into the equal protection and due process clauses instead. In chapter 11, I understand Balkin to be making largely the same argument about the Guarantee Clause: it was very incorrectly and very narrowly interpreted in Luther v. Borden, so now it doesn’t do much work in the Constitution, and the Equal Protection and Due Process Clauses have to pick up the slack there as well (pp 240-44). These interpretations I think professor Balkin would call durable (because a great deal of law is built on them and no one is really fighting about them anymore) but not canonical (because no one talks about them) (pp. 312-15).

Here’s my gripe: living originalism is supposed to be originalism because it looks to history for the original interpretation (and therefore the legitimacy) of the Constitution, but it’s living because it only lifts a vague, neutral framework from history instead of required applications, and then it invites future generations to build on, play in, and live through that framework. I think that framework—which I understand to be the objectively interpreted text and principles of the Constitution—is a Trojan Horse for some normative claims. We’re told that the framework is mostly lofty principles and a few easy-to-find hard rules (age of the president, number of senators) but then we’re told in chapters 10 and 11 that the framework has been fundamentally misunderstood in ways that have really messed up some of the growth of the most important precedential lines our country has ever seen. I think chapters 10 and 11 encourage us to believe that the framework has been objectively mis-interpreted, and that we need to remedy those interpretations so that we can continue to construct a future for our country.

Now I’m not contrary to any of the interpretive claims made in chapters 10 and 11, and I certainly don’t have the historical knowledge necessary to really challenge them (See supra the first paragraph of this essay), but I smell something fishy in these instantiations of interpretation-as-ascertainment. As Living Originalism makes very clear, history can always be understood in several different ways; indeed, we need not strain to imagine how the Privileges and Immunities Clause and Guarantee Clause could be interpreted differently from the way Balkin argues for: those interpretations already exist in the current law. So, Balkin’s arguments come across as normative arguments for how we ought to ascertain the meaning of these clauses. But ah! If we’re doing normative arguments and using the word “ought,” aren’t we constructing, not interpreting? Ascertaining the meaning of the Constitution was supposed to be the objective part, not the normative, argumentative part. How did we go wrong?

I think the point I’m trying to make here is that I think a lot of the interpretation/construction divide collapses when we want to read our own norms into the framework of the Constitution, which we pretty much always want to do. A conservative legal scholar I am not, but I took a whole class from Lawrence Solum, so I can now imagine originalist/textualist arguments that say “I am not restricting myself to initially-applied constructions, you’re just ascertaining an overbroad interpretation of the text that lets you get away with (Liberal) not-initially-applied constructions!” That doesn’t make me dislike Balkin’s theory, but I think it does negate some of the academic superiority over original-application originalism (Scalia’s originalism) that the text argues Living Originalism can offer. I think it makes some of the “originalists are constructing this part wrong” claims into “originalists are constructing this part wrong if they accept the framework I’ve made, laden with my own biases” claims; as much as I like the biases, I think that gives (Scalia-type originalists) an easy way out, and back to (Conservative) original-applications.

If you’ve read this far, my apologies again for the length of this argument, and I look forward to hearing your feedback in class.