My defense of originalism (and the living constitution)

JB

For the past year I've been rethinking my views on constitutional interpretation, and rereading some of the very rich literature that has developed in the past fifteen years or so, as well as studying the history of the Fourteenth Amendment.

This summer, I wrote up the results, offering a method of interpretation I call text and principle, which is both a form of originalism and a form of living constitutionalism.

Many faithful readers of this blog know that I have been very critical of originalism as it has been practiced, and have defended the idea of a living constitution. But I have gradually become convinced that these two positions are not really inconsistent with each other; only particular versions of them are. This article gives a fuller account of my views.

Not shying away from a challenge, I then decided to take on one of the defining constitutional controversies of the day, namely the constitutional right to abortion. It seemed to me that no attempt to offer a method of constitutional interpretation these days would be worthwhile unless one can explain how it applies to the constitutional controversies that concern people the most. If a theory can give a reasonable account of the right to abortion-- whether for or against-- most other issues will probably be a lot easier.

The second half of the paper applies the theory, first giving an account of the original meaning of the fourteenth amendment and then applying the theory to the right to abortion. (Actually, I conclude that there are two different rights).

About three years ago, I wrote up my best arguments for the right to abortion and published them in my edited collection, What Roe v. Wade Should Have Said. Because my views on interpretation have changed in the interim, this argument is has some important differences from the one I gave there.

I don't contend that reasonable people using my method of interpretation could not disagree with my conclusions about the right to abortion. The point of such a method is that different people using it can have a common language for discussion and analysis. I do claim that my arguments about abortion are consistent with the original meaning of the Constitution, and that, in my opinion, they are a better interpretation.

Here is the abstract for the article:

This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse original meaning with original expected application.

Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of text and principle. This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.

The article applies this method to the most contentious constitutional issue of our generation-- the constitutional right to abortion. It concludes, contrary to conventional wisdom, that the constitutional right to abortion is consistent with the original meaning of the Fourteenth Amendment, and, in particular, its prohibition on class legislation that is embodied in the Equal Protection Clause.

The article criticizes Roe v. Wade's original trimester system, arguing that there are actually two rights to abortion instead of one. Finally, it explains how courts might have better implemented the constitutional guarantee of the two rights to abortion in ways that are more respectful of democratic politics.

UPDATE: Both Randy Barnett and Larry Solum have graciously recommended this piece, and in return I want to thank both of them for the influence they have had on my thinking on these questions. Randy's book, Restoring the Lost Constitution, was a real advance in the debate about originalism, and showed how nonoriginalists could come to terms with the arguments that originalists were making; he has elaborated these themes in various blog posts on The Volokh Conspiracy. Larry and I engaged in a long (and to my mind, very interesting) debate on our respective blogs about formalism and historicism in constitutional interpretation that also helped me sharpen my thinking. This is one example where the combination of traditional scholarship and blogging can really help scholarship.
Posted 8:31 AM by JB [link]