Talking heads with something to say
The thesis of Professor Balkin's Living Originalism
has been percolating in his writings for the past 7 or 8 years. Perhaps its most thorough treatment prior to this book was in a 2009 Northwestern Law Review article
Original meaning originalism and living constitutionalism are compatible
positions. In fact, they are two sides of the same coin. Although not
all versions of these theories are compatible, the most intellectually sound
versions of each theory are. Recognizing why they are compatible helps us
understand how legitimate constitutional change occurs in the American
For more background, see Prof. Balkin's Abortion and Original Meaning
. And for my thoughts, Constitutional Interpretation, Originalism and a Living Constitution
One of the central points Professor Balkin made in our conversation was the basic artificiality of the concept of the "originalist" as the term is understood in the political conversation. He argues that authentic originalism is actually progressive, as opposed to the rhetoric of "originalism" conservatives have used as a political tool to promote their policy agenda. Balkiin notes that reputed "originalist" judges are originalist only some of the time, and abandon originalist language when it is inconvenient for them.
I asked him about the observations of Justin Driver, who questioned a progressive embrace of any originalist framework. Prof. Balkin responded:
Liberals have a problem with the idea of constitutional fidelity. That is they think that what it means to be faithful to the Constitution is captured by the way originalists talk and as a result too many have been too eager to jettison the history of the Constitution. They don't want to talk about the text of the Constitution or to make arguments from structure. Instead they want to make arguments from their favorite cases from the Warren Court era and the Burger Court era. [...] It seems to me that is a bad idea because American constitutional culture emphasizes (1) the centrality of the text; (2) that we have a written constitution; (3) emphasizes our connection to the American project over the whole course of our history and (4) is interested in the idea of what the Founders thought.
When liberals shy away from [originalism] because they think that's what conservatives do, they basically fight over the meaning of the Constitution with one hand tied behind their back. [...] What's in it for liberals [to fight for Living Originalism]? It allows them to claim that the Constitution belongs to you. It's not something that just belongs to people who dress up in tricorner hats and appear at Tea Party rallies. When you assume it belongs only to conservatives, you then have to say 'oh guys aren't you silly. don't you know we are all past that now.' That's just the wrong way of thinking about your relationship to the Constitution. Liberals have to reclaim the Constitution as their Constitution. To do that, they have to say, it's my text, it's my tradition, it's my connection to the [Founders.] It's my structure of government [the Constitution] that promotes what I think it is right.
And that's the big takeaway from the book.
To illustrate his point regarding the radical and revolutionary nature of right-wing "originalism," Balkin examines the example of Martin Luther:
Originalism is a cultural trope [...] A revolutionary trope. Originalism is a revolutionary idea. It's not an idea about stasis. It's an idea about change. [...] The most famous example of this in Western thought is Martin Luther. Martin Luther was an originalist. He was also a revolutionary. His attack on the Catholic Church was an attack on its corruption and its failure to be faithful to its traditions and its roots. So Luther adopted this Protestant vision of sola scriptura -- you have to return to the text. You have to return to the basic presuppositions of the early Church fathers.
When he does this he is not being a conservative, he is being a revolutionary. That's hard for people to wrap their minds around because they associate originalism with political conservativism and they associate conservatism with resistance to change. But that's not what the conservative movements of the last 40 years have been about. They are revolutionary movements. They have attacked the liberal status quo. They have attacked the achievements of the middle of the 20th Century and said they want to overturn them.
You can see this most obviously in the Tea Party which is revolutionary, not status quo.
Balkin urges the recognition of the revolutionary nature of right-wing "originalism" and recommends a robust response:
The problem for liberals is they have become too soft and too defensive and play a game of responding to attacks. What they need to understand is that if the constitution is yours, then its redemption is your responsibiilty which means you have to take the Constitution and defend it as yours.
How to do this in a principled way? Balkin's answer is "Living Originalism:"
The text and the history of the Constitution, its original design and purpose, gives . . . liberal[s] leverage to criticize what has been done in the last 30 years by right wing "originalists" who are actually unfaithful to the Constitution.
Balkin underscored the importance of the citizenry in the understanding and interpretation of the Constitution. In reaction, I raised a question of the image and role of the Supreme Court, I asked Prof. Balkin:
ARMANDO: Is it important for the Living Originalism idea that people understand that the Supreme Court is not this isolated institution of wise men untouched by the rest of us?
BALKIN: I think it is important they know two things. [..] The first that we expect judges to decide cases based on the law [...] at the same time we want them to understand what is going on the world [...] and we want them to be honest about that.  So we want 2 things, [...] we want them honestly and in good faith to do the work of legal development and second, we want them to not pretend that what they are doing has no relation to the rest of the world [...]
ARMANDO: The whole balls and strikes nonsense.
BALKIN: The whole balls and strikes nonsense was an insult to everyone's intelligence. It really was. It's perfectly ok to say we hope judges will be impartial. [...] But it is insulting to our intelligence to say that what courts do has no effect on society. That's just silly.
We also asked Professor Balkin to provide his views on the Affordable Care Act case currently before the Supreme Court and he obliged us with the application of the Living Originalism idea in action:
BALKIN: [...] the Constitution was drafted [with] federal and enumerated powers. . . [T]he federal government had the power to legislate where the individual states were incompetent or where the harmony of the union would be disturbed by separate state legislation. This is Resolution VI of the Philadelphia Convention which is the basis of the [list] of the enumerated powers.
So . . . when we ask whether Congress has the power to enact something [we ask] whether or not it is solving a genuinely federal problem. That's the structural question. . . .
The power to regulate commerce among the several states is solving federal problems of commerce . The power to tax and [to provide] for the general welfare is solving federal problems. . . .
So look at the Affordable Care Act -- is it solving a federal problem? You bet it is. [...] Of course it is a federal issue. And so if it is a federal issue, then Congress is equipped under the Commerce power and the General Welfare Clause to take steps that are reasonably calculated to solve the federal problem. And that is what it has done. [...] Under McCulloch [the Necessary and Proper Clause case, McCulloch v. Maryland] the Affordable Care Act is reasonably calculated and proper. [...]
Now . . . when the federal government was created, the most important power, the first power in the list of enumerated powers, is the power to tax, to provide for the general welfare. [...] And not only did the Constitution provide for taxes, it provides for duties, imposts and excises. They have like five different names for taxes. . . . [T]he test for whether Congress can levy a tax is whether it serves the general welfare. . . .
Now what is the individual mandate? It's a tax! [...] [D]oes Congress have the power to tax? The test is whether the tax can be seen as promoting the general welfare. Of course it can. The . . . tax promotes the general welfare because you want to lower the insurance rate for everyone else and to avoid the death spiral of increasing insurance premiums if people wait until they are sick to buy insurance. [...]
There is the argument. The only case I cited was McCulloch. All I did was cite text, history and structure [of the Constitution.] [...] When I read people talking about the Affordable Care Act I read about Wickard and his farm and Raich and her marijuana. Forget it. You don't need that. Talk about the Framers. Talk about the history of the Constitution. Talk about the text for pete's sake.
Pretty compelling, don't you think? Me being me, I had to make my own points. I mentioned to Professor Balkin that I believed Chief Justice Story provided a similar view in his 1833 Commentaries on the Constitution:
[A] constitution of government, founded by the people for themselves and their posterity, and for objects of the most momentous nature, for perpetual union, for the establishment of justice, for the general welfare, and for a perpetuation of the blessings of liberty, necessarily requires, that every interpretation of its powers should have a constant reference to these objects. No interpretation of the words, in which those powers are granted, can be a sound one, which narrows down their ordinary import, so as to defeat those objects. [...] It could not be foreseen, what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which at the present might seem salutary, might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require.
. . . In the interpretation of a power, all the ordinary and appropriate means to execute it are to be deemed a part of the power itself. This results from the very nature and design of a constitution. In giving the power, it does not intend to limit it to any one mode of exercising it, exclusive of all others. It must be obvious, (as has been already suggested,) that the means of carrying into effect the objects of a power may, nay, must be varied, in order to adapt themselves to the exigencies of the nation at different times.32 A mode efficacious and useful in one age, or under one posture of circumstances, may be wholly vain, or even mischievous at another time. Government presupposes the existence of a perpetual mutability in its own operations on those, who are its subjects; and a perpetual flexibility in adapting itself to their wants, their interests, their habits, their occupations, and their infirmities.33
[...] In considering this point, we should never forget, that it is a constitution we are expounding.
Professor Balkin had many more interesting and important things to say. And Adam Bonin will be touching upon those in other artlcles.
In addition, I'll be attending the Yale conference on Professor Balkin's book and will be providing dispatches. Stay tuned.
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