Tuesday, April 17, 2012

Jack Balkin’s Rich Historicism and Diet Originalism

Neil Siegel

I am looking forward to the upcoming conference at Yale Law School on Jack Balkin’s Living Originalism. The paper I will present is entitled Jack Balkin’s Rich Historicism and Diet Originalism: Health Benefits and Risks for the Constitutional System. Here’s a brief description.

In Living Originalism, Balkin reasons from two points of view—the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system. First, he provides a systemic account of constitutional change, which he calls “living constitutionalism.” Second, he offers an individual approach to constitutional interpretation and construction, which he calls “framework originalism” or “the method of text and principle.”

Reasoning from the systemic perspective, Balkin develops a compelling theory of the processes of constitutional change. Balkin may insufficiently appreciate, however, that public candor about—or even deep awareness of—the pervasiveness of constitutional change can undermine self-confidence about one’s own constitutional convictions. Such self-confidence underwrites effective advocacy in the present. Historicism teaches that, time and again, many right-thinking people were wrong notwithstanding their certainty that they were right. This knowledge, which encourages consciousness of one’s own consciousness, may cause those of us who suffer from “modernist anxiety” (as opposed to postmodernist detachment) to question why we should be so sure we are right today.

Reasoning from the individual perspective, Balkin provides a persuasive, if imperfect, account of the importance of the constitutional text in the American tradition. But Balkin does not seem to register the potential consequences of turning to “originalism” following decades in which the term has been associated in public debates with a conservative political practice, and when conservatives control the federal judiciary. A progressive declaration in 2012 that “we are all originalists now” would risk lending unintended support to the ongoing fruits of conservative originalism, including an unsettling of the New Deal Settlement, the Second Reconstruction, and more.

Such a development would be troubling not only from the perspective of progressive constitutionalists, but also from the perspective of the constitutional system. Conservative politicians and judges, who may either misunderstand Balkin or wish to repurpose him (as Balkin seeks to repurpose originalism), might use a progressive embrace of Balkin’s very thin version of originalism to throw everyone into an easily caricatured originalist camp. That misappropriation, in turn, might undermine the diversity of constitutional opinion that exists in fact and that secures the legitimacy of the system as a whole.

As for the title of my piece, I call Balkinian originalism “Diet Originalism” because it shares similarities with “Originalism Classic” in terms of outward appearance, but it contains little of the constraint that can weigh down the user.

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