Promissory Constitutionalism

Guest Blogger

My deep thanks to Professor Jack Balkin for graciously responding to an email criticizing his draft of Original Meaning and Constitutional Redemption, with an invitation to publish my criticism on his own blog.

Professor Balkin’s impressive article correctly sees the United States Constitution as the central icon in a civic religion capable of evoking redemptive action by its citizens -- Sanford Levinson’s constitutional faith. Balkin errs however in arguing that this faith must or should tie itself to the original meaning of the historical document. This error is softened, but not eliminated, by his willingness to read “abstract principles and standards” without limiting them to originally expected applications.

Originalism is symbolically unacceptable. Insisting on original meaning implicitly endorses the exclusions practiced by this country’s acknowledged founders. Slavery, attempted genocide of the earlier inhabitants, Justice Story’s Christians-only reading of religious liberty, property and gender requirements for voting or holding office--- none of these positions can be adequately dealt with by blithely claiming that the framing white males were moral enough by the beliefs of their own time. We are not discussing judging them as men. We are considering using them as shared paradigms of the past. How dare anyone ask the descendants of those the founders despised to voluntarily adopt these men as honored ancestors. Originalism has the same emphatic symbolism of hatred as flying the Confederate Flag over a court house. To fulfill Professor Balkin’s (and my) goal of joining the entire citizenry of the United States into a single community aiming at shared redemption, we need to loosen our hold on the past.

Originalism, furthermore, is not necessary. We do not need to wave this flag of exclusion.

First, original meaning is not required to create a link between citizens and the constitution-as-holy. The document has “social legitimacy” in the words of Richard Fallon, Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1792 (2005); a 1997 poll reported that 91% of Americans considered the Constitution to be “important” to them personally. School teachers, public speakers, leaders of youth organizations, parents, etc. forge this tie without needing help from mere law professors or legal theory.

Second, letting go of original meaning does not reduce the document to nonsense. Many words change meaning over time in reflection of speakers’ gradual changes of belief about the outside world, including moral and political policy. Some do not. Usually the need to use an archaic meaning is jarringly obvious, consider “letters of marque,” Art. I, Sec. 8, cl. 11. Sometimes we need to ponder the choice. Perhaps if Professor Balkin and I worked through the document word by word, though starting from opposite base lines, we would largely converge on when to use an old and when to use a newer meaning. But how would his theory include an air force inside Congress’ power to “raise and support armies,” and “maintain a navy,” Art. I, Sec. 8, cls. 12, 13? How would it deal with “recess” in Art. II, Sec. 2, cl. 2? Can it shrink state sovereign immunity?

My essential pragmatism, furthermore, warns me against any theory named “originalism.” The history of constitutional interpretation demonstrates that immoral (or more politely non-aspirational) outcomes repeatedly stand on refusals to let the meanings (or extensions, or applications, etc) of words change over history, rather than the opposite. For example, I think that most lay persons are unpleasantly surprised to discover that courts enforce only an archaic, technical, narrow meaning of double jeopardy, the right against self incrimination, habeas corpus, and other basic protections against government over reaching. In sum, for an aspirational constitutional doctrine, the default should be modern meaning; the exception should be originalism. (I have argued for one exception, “promise” in Art. I, Sec. 8, cl. 8 is commonly given a modern incorrect reading-- but that error is not made because of a conscious decision to use modern language. See Malla Pollack, What is Congress Supposed to Promote?, 80 Nebr. L. Rev. 754 (2001)).

Finally, originalism is not required because the Constitution is a legal document enforceable over time. Professor Balkin relies on the analogy of statute; many rely on the analogy of contract. Neither of these is a good fit. The United States Constitution is much too difficult to amend. This point is so commonly made that it needs no further discussion.

What is seldom discussed, however, is that we can have textualism without originalism. We can read the constitution as a promise; we can hold tight to the historical text as amended, but read it through living eyes. Promissory textualism supplies the same emotionally fulfilling tie among the historical document, the current population, and all future populations as does originalism -- but without originalism’s insults to this country’s current population. For a fuller discussion of promissory constitutionalism and the arguments made earlier in this blog entry, see Malla Pollack, Dampening the Illegitimacy of the United States Constitution: Reframing the Constitution from Contract to Promise, 42 Idaho Law Review 123 (2005). (Both of my cited law review articles are available at <http://works.bepress.com/malla_pollack/>.)