Balkinization: Originalism is for Progressives

Originalism is for Progressives

Doug Kendall and Jim Ryan's essay in the New Republic makes the eminently sensible point that progressives should stop viewing originalism as the enemy just because they have come to associate it with people they disagree with politically. Instead, they should recognize that originalism is the right approach for progressives as well as conservatives:

what if progressives tried another tack? What if they stopped accusing Scalia and his ilk of intellectual simplicity and instead accused them of being unfaithful to the Constitution? Suppose that they pointed out where neither text nor history supports the results conservatives say they support? Suppose they even charged that conservatives ignore the Constitution when it gets in their way? Now that would be a fair fight.

Indeed, there's a nascent movement among progressives to embrace the Constitution rather than run from it. The central theorist of this school--what you might call progressive originalism--is Yale law professor Akhil Reed Amar. Amar is one of his generation's most influential constitutional historians. His works on the Constitution have won acclaim from across the political spectrum, with one prominent conservative law professor calling Amar's recent opus, America's Constitution: A Biography, the best book written about the Constitution since The Federalist Papers. This conservative acclaim is somewhat surprising, because Amar reveals the Constitution to be a deeply progressive document.

Over the years, conservatives have convinced many liberals--not to mention the public--that the Constitution is a document largely geared towards protecting private property and wealth. Amar demolishes this notion. He explains that our Constitution started out both democratic and inclusive for its time and has remained viable because of constitutional amendments that improved the document.

Amar's most powerful argument is that the post-Civil War amendments fundamentally altered our founding document in ways that have yet to be recognized by the Supreme Court. What may have begun as a document focused on protecting liberty was transformed into a document just as concerned with equality. A federal government that began with powers that were "few and defined" was awarded vast new powers to protect due process and equal protection. Conservatives may not like this, of course, but they should not be able to wish away these changes.

This approach may not sound terribly revolutionary. But once liberals understand that the Constitution is a progressive document, it will transform the way in which they argue. Consider the one big liberal victory last term--the ruling that the Environmental Protection Agency has the authority to combat global warming. Justice Anthony Kennedy joined the Court's liberal wing in that case because of his conclusion, rooted in constitutional history, that states warrant special solicitude when they challenge federal government inaction. It might have been a persuasive point, but it wasn't made in any of the briefs filed in the case--a symptom of the progressive aversion to this style of argument.
Or take the thorniest of issues--reproductive choice. The fear that a constitutional vision rooted in text and history would mean jettisoning Roe v. Wade pushes liberals away from such a vision. But Jack Balkin, also of Yale Law School, advocates a different approach. Balkin was once a critic of originalism, but, in an important article, "Abortion and Original Meaning," Balkin embraces "fidelity to the original meaning of the Constitution," and argues that the text and history of the citizenship clause of the Fourteenth Amendment supports Roe. Justice Ruth Bader Ginsburg appears to have picked up this argument in her dissent to the recent partial-birth abortion case. She asserted that the right to reproductive choice is not rooted in a "generalized notion of privacy" but rather in a woman's "equal citizenship stature." What Balkin and Ginsburg realize is that Roe will only survive if progressives convince the Court and the public that the right to reproductive choice is rooted in our founding document.

Of course, the Constitution's text and history does not line up perfectly with a progressive agenda. Constitutional text and history, moreover, will not provide precise answers to many questions confronted by courts. But, faced with these complications and uncertainties, progressives would do well to follow Scalia's lead. In public debates over constitutional interpretation, Scalia keeps it simple. Sure, he says, sometimes I have to follow precedent. Sure, he admits, sometimes text and history aren't so clear. But those are details. Don't let them distract you: I like a rock-hard Constitution, plain and simple, and that Constitution binds me as a judge.

It's important to remember that before Antonin Scalia and Clarence Thomas, there was Hugo Black, one of the great liberal defenders of the Bill of Rights, who made originalist arguments for the positions he took. Originalism is not the interpretive philosophy of stand patters. It is the philosophy of people who want to restore and redeem the Constitution's promises in a world where they have been forgotten or disrespected. That is why many conservatives turned to originalism in the 1980s-- they wanted to turn the Constitution back to what they believed was the proper path. Liberals might well disagree with them on the merits. What they should not disagree about is that the goal of interpretation is fidelity to the Constitution and its underlying principles. If liberals think that the current generation of conservative judges have hijacked the Constitution and twisted its meaning, they shouldn't respond by callling for a counter-hijacking. Rather they should follow the example of Hugo Black. They should call for a return to first principles, to the best interpretation of the Constitution's original meaning and underlying values. They should be originalists once again.

Many progressive scholars avoid these conclusions because they know that life is change. They are worried that originalism means giving up the idea of a living constitution-- a constitution that adapts to changing times. Nothing could be further from the truth, as I have explained here and here. Properly understood, fidelity to original meaning and living constitutionalism are not opposed positions. They are two sides of the same coin.

Posted 2:31 PM by JB [link]

Comments:

Professor,

Thank you, thank you, thank you. I think it was on the heels of McCreary v ACLU that I first asked myself why there wasn't better literature showing how and where the arguments of Scalia and his ilk fall apart. In recent months I've had the joy of calling Scalia and his partisans "counter-majoritarian", although I suspect the point is too subtle for some and too easily stonewalled for others. But much as the flag is not the sole province of the PNAC neither is "originalism" a single-edged sword.

I think, however, that our big challenge on this score isn't reclaiming the strategy, but recognizing that the opponents are opportunists who will not bat an eyelash at, say, arguing for the independence of the bench if the Democrats hold the Congress long, nor for some gloss on "a living constitution" once it's deemed the rhetoric of originalism no longer polls as well in support of violations of liberty and justice for all.

# posted by

Robert Link : 3:32 PM

"We're all originalists now." That's what we like to say. But with the addition of Balkin and (less recently) the libertarian Barnett to ranks of the conservative originalists I don't know if the simple label means much more than that we need to take the text and history of the Constitution seriously, give it primacy. And, really, who's quarreling with that?

Prof Balkin's paper - Const. Redemption - is important for pushing back against the conservative originalists who, as the TNR article pointed, seem to rarely arrive at an originalist result that couldn't be just as easily classified as a movement conservative position. I find Prof Balkin's conception a satisfying alternative.

But his (Prof Balkin's) conception of originalism differs substantially from a Paulsen/McGinnis/Lund, etc. Doesn't the label lose something when the tent become this big? IN any event, what we're witnessing is the beginning of a interesting battle in academia as to whose definition of O is best . . . I'm looking forward to the conservative responses; the ball is in their court.

# posted by

Calvin TerBeek : 3:57 PM

Calvin Terbeek: I'm looking forward to the conservative responses; the ball is in their court.

Agreed. I suspect they'll just move the goal post, and suddenly it won't be "orginalism v living-constitutionalism", much as Scalia et al suddenly seem so much less concerned about "counter-majoritarianism". But the real strength of my argument comes from the 1996 GOPAC memo in which "activist" is historically listed as "feel good word" to be applied to GOP friendly judges. That, of course, has changed radically, and I doubt, post the equal marriage arguments, that any right-winger would dream of using the term in any but a pejorative sense to attack a ruling that undermined a GOP position.

The single biggest flaw to the liberal/progressive ideological strategies is they (we) remain reactive. Or is it that we credit as good faith argument the sophistical panderings of the likes of Scalia and Thomas? Take your pick.

# posted by

Robert Link : 4:06 PM

I think Scalia and Thomas really do believe what they say. Maybe I'm being naive. (I note that one could make a very good case that Brennan, for example, simply dressed up a liberal vision of the constitution in legal rhetoric and didn't really believe what wrote, see the "what's the most important rule in constitutional law" story).

In any event, I agree that liberals are reactive. It's been that way for a long time. The GOP has, until recently, just simply been better at politics and controlling the terms of the debate. The TNR article is right of course but haven't smart libs been calling for this type of action (reclaiming the rhetorical debate) for years? A linguist from Berkeley whose name escapes me wrote a book on this . . .

# posted by

Calvin TerBeek : 4:26 PM

Calvin TerBeek:A linguist from Berkeley whose name escapes me wrote a book on this . . .

I wish you meant Professor Nunberg but suspect you mean Professor Lakoff. Lakoff had some traction in '04 with a book, "Don't Think of an Elephant." But it was the strategies in that book which first really crystallized for me this problem of initiative. If the GOP sets the frame on Monday's front page in bold type, and the progressives "reframe" it on page nine Tuesday then the progressives _lose_, period. Lakoff's work, to my eye, seems to miss this point. Nunberg's "Talking Right" seems, again, to my eye, to better address such matters.

# posted by

Robert Link : 4:34 PM

As they say, imitation is the sincerest form of flattery, even when the originalism being proposed is only a pale imitation of actual originalism.

Despite some outstanding effort by Professor Balkin to convince us otherwise, original popular meaning of constitutional text has to be generalized to the point where the words have no real meaning in order to allow each succeeding generation of judges to apply the texts as they please.

The reason the living constitution crowd want to be called originalists now is that the originalist legal counter offensive has been so effective in discrediting the living constitution approach as legislating preferred policy outcomes from the bench.

I have no idea on what basis Messrs. Kendell and Ryan claim that the Constitution is a "progressive" document. The Constitution's Article I legislating provisions, Commerce Clause, Second Amendment, Takings Clause, Tenth Amendment and 14th Amendment had to be fundamentally gutted to allow the modern "progressive" government, its bureaucracy and its various programs furthering racial and gender discrimination. These gentlemen are confusing "progressive" with its antithesis - classical liberalism.

# posted by

Bart DePalma : 4:46 PM

Bart,

Im pretty sure I remember reading in the TNR article that they say that the Constitution, properly understood, does *not* line up with progressive politics . . . but that may be a different point than what you're saying. In any event, the proof is in the pudding. Prof Balkin's stance on gun control is a good example of following the text and history to places where you may not politically want it to go. Name an area of constitutional that Scalia/Thomas have done the same . . . (I will stipulate that Scalia has his 4th Am moments, but there's no doubt he's overwhelmingly pro-gov't) . . .

# posted by

Calvin TerBeek : 5:18 PM

These gentlemen are confusing "progressive" with its antithesis - classical liberalism.

I thought he was wrong again:

http://en.wikipedia.org/wiki/Progressivism

"The progressive school, as a unique branch of contemporary political thought, tends to advocate certain center-left or left-wing views that may conflict with mainstream liberal views, despite the fact that modern liberalism and progressivism may still both support many of the same policies (such as the concept of war as a general last resort)."

"Some views in opposition to progressivism are conservatism, and libertarianism.

Conservatives, by definition, advocate established traditions and social stability. They are skeptical of notions of "progress" and social change..."

Write your own definitions, and you can claim you are right every time.

# posted by

Fraud Guy : 6:03 PM

Right! Conservative originalism feeds on a host of myths about meaning or, better (since I have no idea what a meaning is), about interpretation. These myths not only make it harder to see its cherry-picking for what it is. They put the fear of God into progressives, painting them into a corner from which they feel pressed to insist on reading the Constitution creatively. This plays into a mare's nest of bogus rhetoric about "judges who interpret and don't make law"; about allegiance to America's founding ideals; and about a "liberal elite" that thinks it knows more than the rest of us.

What are these myths? A long subject, but when we try to get a handle on meaning, two notions come quickly to mind, usually conflated into a single picture: of things in the head and of concepts hovering overhead that speakers express and hearers grasp. The picture seems a comforting guarantor of comprehension and objectivity. Yet 20th century Anglo-American philosophy of language is in large and better part a study in how it achieves neither and is profoundly misleading as to how the noises we emit manage to be true, false, nonsensical, stimulating, boring, and the like.

Language does not collapse along with the house of cards. The upshot of these studies is not that words are meaningless. Quite the opposite, and for starters one might try to build out of these notions an idea of language as something that both reaches out to reality and is within our grasp. You'll land into paradoxes before your brow has time to furrow.

To the extent conservative originalism is more than outright cherry-picking and dumbing down constitutional terms, it uses such outmoded pictures of language to press the idea that if the framers didn't think of a case, or couldn't get their heads around it, or thought differently about it, original meaning is tapped out and the denunciations of creative adjudication can begin.

Old-time biblical interpretation legitimates itself under such a picture by positing an omniscient divine author. Rabbis had to rule whether, say, use of electricity and indoor plumbing was work within the meaning of the Sabbath laws. What made for a right or wrong was that God foresaw the developments: the meaning was all along in his head, the concept of work far richer than Israelites stuck in the past could see. The Messiah would in time let us know. Meanwhile, rule conservatively to be safe.

Similarly, the Christian fathers read the Old Testament as prefiguring the coming of Christ. They assumed God always had the prospect in mind and guided pens over parchment to drop hints. The more of these that were found, the more Christianity could claim to have upstaged its predecessor while drawing on its credentials.

In practice, of course, such readings were advanced without occult channeling, in fact without a claim to anything more than a place on a chain of custody, in one case an oral tradition dating to Moses, in the other an apostolic succession. In each case the techniques add up to disciplines that, if not codifiable, are intelligible and open to study and criticism. Each in its way sought to present the texts in a certain light, in each case as Professor Balkin would have us see the Constitution: as basic, higher, and ours (for different "we"s).

For the conservative originalist, we are supposed to see ourselves as classical biblical interpreters saw themselves, with one crucial difference: the framers were not omniscient. They did not have pictures of the electric chair in their heads and many 21st century American concepts would have eluded their grasp. So, we are to conclude, progressives just making it up. Progressives have been long cowed by such pseudo-arguments, but less and less so, and that's a good thing. Next target: the rhetoric.

# posted by

occasional observer : 6:20 PM

fraud guy:

Classical liberalism (and its current incarnation as libertarianism) is based on maximizing human freedom by limiting the power of government. Our Constitution was drafted to achieve these goals.

Classical liberalism is the antithesis of modern "progressivism," which is simply watered down socialism and is based on maximizing government to provide benefits to the citizenry. Our Constitution had to be largely gutted to accommodate larger government to achieve these goals.

# posted by

Bart DePalma : 9:12 PM

Baghdad Bart, seeing government as a means to helping people is not the antithesis of limiting the power of that government to control people.

# posted by

Bartbuster : 9:43 PM

Classical liberalism (and its current incarnation as libertarianism) is based on maximizing human freedom by limiting the power of government. Our Constitution was drafted to achieve these goals.

I think to read classical liberalism, especially works by contemporaries like Smith and Bentham, as solely an attempt to "maximize human freedom by limiting the power of government" is to ignore the accompanying discussions of propriety and morality that are part and parcel with these works.

# posted by

PMS_CC : 10:27 PM

Bart,

I read this blog often but have never commented. Although I rarely engage strongly opinionated people (other than my students) because I assume they are intellectually dishonest and/or so narrow-minded as to be incapable of engaging in intelligent conversation, I have decided to ask you a few questions.

Please explain your originalist interpretation of the Excessive Fines Clause. Shall we use the usual "lock us in to two hundred years ago" or "original public meaning" approach (would that be anything more than $5?) or shall we adjust for inflation under some sort of balancing test or sliding scale (such as "grossly disproportionate" for instance)? If we are to adjust for inflation in these ways, have we interpreted too broadly - so as to render the clause meaningless and infinitely maleable - or are we admitting to a need to take into account modern realities in constitutional interpretaiton and application? If so, which realities should we take into account? Should it just be factors like inflation? What about the invention of automobiles, airplanes, and thermal imaging devices? Can we recognize other changes in and elements of modern society and societal norms or just those social conservatives (or their version of "the majority" - like all legislation or government action is produced by "the majority") find acceptable? Does the Bill of Rights have a static meaning that can no longer restrain government because its amendments are locked into some "original public meaning" world and culture that does not reflect the modern condition?

Shall we retreat into some Pollyanna notion of the good ol' days and rely on the over-used Scalia-ism that "the Constitution says nothing about it" (implying it always does in his world - which is demonstrably false) and some variation on "we have always done it that way"? How then does he reconcile his views on flag burning will historically-prohibited flag desecration laws that were enforced without exception for expressive conduct?

Read Calvin's comments above. It is you and your ilk who disguise social and political conservativism in simplistic and selective originalist approaches to constitutional jurisprudence. Until you face your intellectual dishonesty, you will never be able to recognize that there are, in fact, valid points to be made on all sides of these arguments - regardless of what label you choose to place on their authors.

Perhaps the Scalia-style originalist argument has been so effective - if it has been as you say - because it appeals to the simple-minded masses that possess neither the desire nor the mental acuity to dissect his many opinions and grasp their theoretical and logical inconsistencies ... probably because they usually agree with his results. I encourage you (and other Scalia fans) to take that first step to recovery. Admit you have a problem.

# posted by

Unknown : 11:30 PM

I'm always a bit confused by these characterizations of the Constitution as a document promoting "progressivism" or "liberty" or any other buzzword. These words lump together a collection of concrete clauses into a simple notion of law, which is certainly disingenuous at best. After all, what better way to make the Constitution say what you want it to say than to frame the entire document in terms sympathetic to your position?

We should treat the thing as it is: a collection of clauses and articles designed not to promote a particular ideology, but to codify the law of the land.

(BTW,I may not agree with Scalia on many political issues, but to call him counter-majoritarian is laughable.)

Originalism is not a progressive or conservative method. It is not a weapon, but rather a commitment to, in as much as we can as corruptable humans, be faithful to the legislative process.

I would just say that all these people that would like to make the document say what they would like it to say should consult their representatives to initiate the amendment process.

# posted by

brettgardner : 1:52 AM

I have to say that this strikes me as another Fabian moment, just like when socialists confiscated the word "liberal" because it was more popular than "socialist". Leaving real liberals to refer to themselves as "classical" liberals or libertarians.

Can't beat the other guy in a fair debate? Fine, pretend that you ARE the other guy, steal his name, steal his reputation, and hope you'll confuse people long enough to capitalize on the theft.

The central tenant of orginalism is that the Constitution doesn't change it's meaning unless and until it's amended. I see no real sign that supposed "originalist" progressives are ready to embrace that tenant. Until they are, use of the term "originalist" by them is nothing but a fraud.

# posted by

Brett : 7:01 AM

Balkin does embrace that tenant. He simply rejects the notion that original meaning and original expected application of the law are identical.

# posted by

Unknown : 8:42 AM

I must wholeheartedly agree with my fellow Brett. If the Framers had intended to let the clauses be amorphous and ever-changing, there would be no need for the amendment process, as anything could fit under somebody's willful interpretation.

# posted by

brettgardner : 9:30 AM

Once again, the notion that the Framers did not intend for the meaning of the Constitution to change except by amendment is not the same as the notion that, despite a continuously evolving social context, the application of the Constitution would not change except by amendment.

# posted by

Unknown : 10:06 AM

it's "tenet", not "tenant" . . . just saying . . .

# posted by

Calvin TerBeek : 10:46 AM

"If the Framers had intended to let the clauses be amorphous and ever-changing ..."

The ponderous style notwithstanding, I believe oo rather effectively argued the contrary above. Shorter oo (my take, anyway):

Modern philosophy of language suggests that the clauses inevitably are so whether the framers intended them to be or not.

IMHO, a similarly effective rebuttal of oo's position needs to be equally nuanced (though preferably less ponderous (:>)).

-Charles

# posted by

Charles T. Wolverton : 10:56 AM

"it's 'tenet', not 'tenant'"

In context, correct - altho I believe it would also be more-or-less correct to say that today "the central tenant of originalism is J Scalia".

-c

# posted by

Charles T. Wolverton : 11:03 AM

BTW,I may not agree with Scalia on many political issues, but to call him counter-majoritarian is laughable.

I'm not sure I understand this. It seems to me that any theory of interpretation, if applied consistently, must inherently be counter-majoritarian. Hell, the Constitution itself is counter-majoritarian; if we really want to be majoritarian, let's scrap the Constitution and just have one rule: the majority rules.

Scalia may strike down different laws, but there's nothing in his judicial philosophy which inherently requires that he strike down fewer.

# posted by

Mark Field : 11:21 AM

@Mark Field,

The counter-majoritarian bit comes from me. Back in '05 Professor Solum did a post on Scalia's complaints that the bench of the day was working against the will of the popularly elected branches, he called the bench "counter-majoritarian". But now that we have a right-wing bench and a Democratic congress the foot is in the other shoe, if you will. Hence I take delight in calling Scalia by his own pejorative. It's only fair.

Here's a bit I wrote in response to Professor Solum's article.

Peace.

# posted by

Robert Link : 1:08 PM

Mark wrote: "Balkin does embrace that tenant. He simply rejects the notion that original meaning and original expected application of the law are identical."

Yes, but original meaning should be a superset of the original expected applications. Furthermore, to the extent that they differ, it must be shown that the original meaning included conditionals upon facts that were not considered by the framers.

# posted by

Kevin : 1:40 PM

I'm having trouble making any sort of sense out of either of those sentences.

In Professor Balkin's analysis, original meaning and original expected application are distinct types, so it is no more possible for original expected applications to be a subset of the original meaning than it is for any set of apples to be a subset of oranges. Perhaps all you mean is that expected applications must have been seen as consistent with the meaning of the text and law at the time of the law's ratification? If so, that is hardly a remarkable observation, nor is it at all contra Balkin. If, on the other hand, you mean to imply that any interpretation of the meaning of the law must be constrained so as not to admit of any application outside the bounds of the original expected application of the law, then that is a very different proposition for which I see no support.

Neither do I see any support for your notion that any deviation from the original expected application of the law must be explicitly conditioned on facts not considered by the Framers.

I can see how these assertions may be attractive to those predisposed to conflate for their own political advantage the original meaning and original expected applications of the Constitution, but I don't see any reason why those who are not so predisposed should accept your pronouncements.

# posted by

Unknown : 2:49 PM

Mark wrote: "Perhaps all you mean is that expected applications must have been seen as consistent with the meaning of the text and law at the time of the law's ratification?"

Basically, yes. I meant that the set of all possible applications of the original meaning must be a superset of the set of original expected applications. You stated that the two were different, and I just wanted to clarify how they were related. Sorry if that was confusing.

Perhaps my use of the word "facts" was also confusing, or else, beyond error or lack of consideration, under what circumstances would those who defined the original meaning fail in applying it?

It is clearly true that original meaning is not limited to the original expected applications, as you repeatedly implied in your previous posts, but I don't think that is actually the main point of contention.

Instead, given that the original expected applications provide evidence of the original meaning, the question seems to be, what additional evidence is there to support deviation from those original expected applications in constructing the original meaning?

In other words, I think the disagreement concerns the model of "original meaning" that Balkin is constructing, not the fact that original meaning is different from original expected applications.

# posted by

Kevin : 4:17 PM

Instead, given that the original expected applications provide evidence of the original meaning, the question seems to be, what additional evidence is there to support deviation from those original expected applications in constructing the original meaning?

Who suggested deviating from the original expected applications (into what, exactly?) in an effort to reconstruct the original meaning? Not Balkin, who agrees with you that the original expectations, while not defining the limits of the original meaning, do help illumine the original meaning. Since you accept that it is clearly true that original meaning is not limited to the original expected applications, why do you seem to presume that subsequent applications of the original meaning should not deviate from the original expected applications?

# posted by

Unknown : 5:46 PM

Mark wrote: "Who suggested deviating...(into what, exactly?)?"

"Deviating" to the extent that new applications are dissimilar to the original expected applications. The "original meaning" derived by originalists adheres more closely to those original expected applications than Balkin does.

This does not mean that originalists do not see the basic difference between original meaning and original expected application. They simply need justification for including additional principles and conditionals in their understanding of the "original meaning" in order to make it more like Balkin's original yet living constitutionalism.

# posted by

Kevin : 7:20 PM

The "original meaning" derived by originalists adheres more closely to those original expected applications than Balkin does.

Even if true (and I do not accept that this blanket assertion is always true), so what? The goal is presumably to more fully and accurately ascertain the original meaning, before proceeding to apply that meaning to the best of our ability in the current context; not to elevate a cramped notion of what is the original meaning because that notion is cabined within an original expected application that may now look quite suspect from our changed historical and social perspective. It is not additional principles and conditionals that so-called originalists need to allow them to see the original meaning of the Constitution, but rather the abandonment of the unwarranted principle that original expected applications are sacrosanct and inviolable outside of some extraordinary exception explicitly allowed for in the text.

# posted by

Unknown : 8:13 PM

We collect evidence to form our concept of "original meaning". Original expected application is such pertinent evidence.

You can rephrase it that originalists need to de-emphasize original expected applications, but to do so they also need to relatively emphasize some other evidence in their determination of "original meaning".

It is that "other evidence" which must convince originalists to adopt a more living original meaning.

# posted by

Kevin : 11:15 PM

You seem to be continuing to confuse two separate contexts of analysis.

Yes, original expected application is pertinent to an analysis of the original context, and is thereby useful in discerning the original meaning.

Once we have arrived at our best knowledge of that original meaning, original expected application is not sacrosanct and inviolable when we seek to apply that original meaning in the current context of application.

So called originalists do not need more "other evidence" than original expected application in order to find the original meaning. Lack of evidence is not an inherent problem, though it may be in some instances. Indeed, so called originalists already frequently commandeer as supports for their arguments other elements of the original context than just original expected application. There is nothing wrong per se in more completely examining the original context in an effort to understand the original meaning. It is in just that kind of full analysis and debate over the original context and meaning that Balkin in encouraging progressive scholars to participate instead of ceding the ground to self-proclaimed originalists.

Rather, the errors that Balkin finds in the so called originalists' method are that, in their examination of the original context, their method improperly privileges original expected application by failing to adequately separate this from original meaning; and, in their application of the law in our current context, the so called originalist method improperly privileges the expected application from the original context in what is now a very different social and historical context. Other possible current applications that are more congruent in the current context with the original meaning deserve the privileged position that the so called originalists usurp.

# posted by

Unknown : 9:37 AM

I do see the difference between contexts, and I agree with your basic description.

The key question concerns how we abstract the original meaning from the original context and applications. Some kind of evidence is required to determine which original aspects we should maintain and which we should abstract in order to determine original meaning. That is where the debate should be centered, in my opinion.

Abstracting too greatly can be just as erroneous as adhering too closely. Since the original context and applications are our base, saying that originalists are adhering too closely should be met with evidence for why they should further abstract.

I don't think I'm saying anything particularly contentious. My intent was merely to suggest an alternative focus.

# posted by

Kevin : 12:51 PM

this essay by jb strikes me as a well-intentioned but unsound effort relying on wordplay.

what scalia means by "originalism" - perhaps something along the lines of "the govt shouldn't do what is not explicitly mentioned in the constitution"

is not, i would guess,

what justice black espoused,

which i would guess was more along the lines of "let's be sure we interpret the constitution so that we treat all our citizens equally."

each of these positions may be termed "originalism",

but they are world's apart in the implications for

fair treatment of each citizens

and for the way government will function (or be prevented from functioning) in our 250-year-older american society.

trivia question for jb:

did justice black ever use the term "originalism" or a synonym in his judicial comments or lectures?

# posted by

orionATL : 2:33 PM

That is where the debate should be centered

Which was pretty much Balkin's point: Not that his own interpretation of original meaning must be accepted without argument, but rather that the debate over the best interpretation of original meaning should not be conceded to self-proclaimed originalists -- and particularly not to those who confuse original meaning and original expected application. As you have noted, the debate over original meaning should be at the center of Progressives' constitutional interpretation.

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