Posted by Randy Barnett:
Balkin's Originalism:
http://volokh.com/archives/archive_2007_01_07-2007_01_13.shtml#1168296342
[1]Underlying Principles, my very brief (11 pages) comment on Jack
Balkin's [2]Original Meaning and Abortion, is now up on SSRN. Here is
the abstract:
In his forthcoming article, Original Meaning and Abortion, 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."
In this brief reply, I caution that, to remain faithful to the
Constitution when referring to underlying principles, we must never
forget it is a text we are expounding. And it is the text, properly
interpreted and specified in light of its underlying principles,
not the underlying principles themselves, that is to be applied to
changing facts and circumstances by means of constitutional
doctrines. There is another highly familiar and very nonoriginalist
way to see the relationship between "text and principle": One could
discern the principles underlying the text, and then apply these
principles directly to new circumstances. By so doing, one can end
up potentially expanding the reach of, and even contravening, the
text itself. Because Balkin sometimes appears to be endorsing the
second of these two approaches to text and principle in this paper,
he may give some readers the mistaken impression that he is still
employing a living constitution approach under the guise of
original meaning originalism.
In his contribution to the symposium, Ethan Lieb agrees that Balkin's
move to originalism is both real and significant:
It certainly seems like the originalists are winning. Professor
Jack Balkin -- finding that he couldn't beat 'em -- joined them.
Living constitutionalists used to turn to Balkin as a reliable
advocate; he recently wrote we are all living constitutionalists
now. But Balkin has forsaken them. Losing such an important
advocate might be a sign that what some once deemed the ascendant
and dominant theory in constitutional interpretation is on the
decline. Still, don't count living constitutionalism out of the
game just yet.
You can read Ethan's article, "The Perpetual Anxiety of Living
Constitutionalism," [3]here.
Interestingly, in his article, Ethan wrongly guesses that my reaction
to Balkin will be similar to my reaction to Justice Scalia's
originalism. Even more interesting, he and commenters on PrawfsBlawg
muse about why I seem to be going so easy on Jack [4]here. Except for
the last post (at 1:01:37), it's an unusually perceptive exchange.
For those who have not seen my critique of Justice Scalia, [5]Scalia's
Infidelity: A Critique of Faint-Hearted Originalism, I just uploaded
the published version [6]here. Here is the abstract:
In this essay, based on the 2006 William Howard Taft lecture, I
critically evaluate Justice Antonin Scalia's famous and influential
1988 Taft Lecture, entitled Originalism: The Lesser Evil. In his
lecture, Justice Scalia began the now-widely-accepted shift from
basing constitutional interpretation on the intent of the framers
to relying instead on the original public meaning of the text. At
the same time, I explain how Justice Scalia allows himself three
ways to escape originalist results that he finds to be
objectionable: (1) when the text is insufficiently rule-like, (2)
when precedent has deviated from original meaning and (3) (when the
first two justifications are unavailing) just ignore originalism to
avoid sufficiently objectionable results. While Justice Scalia
describes his approach as faint-hearted originalism, I contend that
he is not really an originalist at all as evidenced by this lecture
and also by his stances as a justice in several important cases.
This leaves Justice Thomas as the only justice who seems at all
bound by originalist conclusions with which he may disagree. I then
summarize why the courts ought to adhere to original public meaning
originalism, why this form of originalism is preferable to the
principal alternative - which I call the underlying principles
approach - and why originalism, properly understood, does not lead
to the types of grossly objectionable results that lead Justice
Scalia to be faint of heart.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=954601
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=925558
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=952384
4.
http://prawfsblawg.blogs.com/prawfsblawg/2007/01/barnett_and_und.html#comments
5. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=880112
6. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=880112
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