A Valiant Attempt to Make Originalism a Liberal Judicial Philosophy

March 29, 2012

The New Republic:

On the morning of July 14, 1967, Thurgood Marshall began his second day of Supreme Court confirmation hearings by preparing to confront questions posed by Senator Sam J. Ervin Jr. of North Carolina. This prospect seems unlikely to have been a pleasant one. After thirteen years in Washington, Ervin’s foremost achievement remained his role in drafting the document that had formally been styled a Declaration of Constitutional Principles, but that almost instantly became known as the Southern Manifesto. That document, which drew support from the overwhelming majority of Southern congressmen and senators, denounced the Supreme Court’s decision in Brown v. Board of Education as an abuse of judicial authority. “This unwarranted exercise of power by the Court, contrary to the Constitution, is creating chaos and confusion in the States principally affected,” the politicians complained. “It is destroying the amicable relations between the white and Negro races that have been created through ninety years of patient effort by the good people of both races. It has planted hatred and suspicion where there has been heretofore friendship and understanding.”

As the attorney who led the winning legal team in Brown, Marshall shouldered no small amount of the burden for this precipitous decline in race relations. It must have come as little surprise, then, that Ervin’s questioning demonstrated marked hostility toward Marshall’s nomination. But by 1967 Brown was sufficiently well on its way toward canonization that Ervin avoided directly asking Marshall about segregation in public schools, and instead concentrated his attention on the Warren Court’s decisions protecting criminal defendants.

But lurking not very far beneath the surface of Ervin’s questioning of Marshall was the Southern Manifesto’s primary objection to Brown: that the decision defied constitutional originalism. “The original Constitution does not mention education,” the Southern Manifesto noted. “Neither does the Fourteenth Amendment nor any other amendment. The debates preceding the submission of the Fourteenth Amendment clearly show that there was no intent that it should affect the system of education maintained by the States.” One need not listen especially hard to hear echoes of this notion in a question that Ervin pitched to Marshall at the hearings: “Is not the role of the Supreme Court simply to ascertain and give effect to the intent of the framers of this Constitution and the people who ratified the Constitution?” Although Ervin’s query was freighted with jurisprudential implications, Marshall’s response deftly sidestepped the danger. “Yes, Senator,” Marshall replied, “with the understanding that the Constitution was meant to be a living document.”

This long-forgotten riposte merits renewed attention, as Marshall managed forty-five years ago to approximate a constitutional theory that has recently become ascendant within liberal legal circles. After decades of attempts to slay originalism, some prominent scholars on the legal left have now begun to embrace the notion—or at least their particular conceptions of it. In so doing, these law professors typically make an intellectual move similar to Marshall’s, suggesting that the bitter dispute between originalists and living constitutionalists fundamentally rests on a false antithesis. In this vein, the title of Jack M. Balkin’s new book, Living Originalism, draws its punch by combining the two ostensibly oxymoronic terms. Balkin contends that “we do not face a choice between living constitutionalism and fidelity to the original meaning of the text. They are two sides of the same coin.” That is so, Balkin insists, because “properly understood, these two views of the Constitution are compatible rather than opposed.”

Owing to his close association with the American Constitution Society and his lengthy track record of producing consistently provocative scholarship that is also consistently left-leaning, Balkin possesses unimpeachable liberal credentials. Accordingly, his declaration in a law review article five years ago that he had—seemingly overnight—converted to originalism created quite a stir within the corridors of the legal academy. From the left, liberal critics accused Balkin of apostasy. From the right, conservative critics accused him of creating a false conversion narrative, asserting that Balkin actually aimed to co-opt originalism, not subscribe to it.

During the last five years, Balkin has dedicated much of his intellectual energy to a series of articles elaborating and refining his own account of the originalist enterprise. Living Originalism, the culmination of this work, succeeds in providing an endlessly engaging theory of constitutional law that wrestles with the field’s most urgent concerns in a way that accounts for nuance without sacrificing clarity. That is no meager achievement. Balkin’s book will likely serve as a focal point for constitutional theorists of various stripes for years to come. The volume’s prominence seems assured because it presents in an unusually acute form the fundamental question of whether any variety of originalism can provide what liberals want—and, significantly, what liberals in future generations will want—in a theory of constitutional interpretation.

FOR THE last few decades, of course, much of the legal left has derided originalism, contending that the method reduces the complex task of judging to an overly simplistic and faux-historical inquiry that would lead to intolerably retrograde decisions. Liberal scholars had their sights firmly trained on originalism even before Attorney General Edwin Meese III brought the issue out of the law reviews and into the national spotlight in 1985 by calling for a “jurisprudence of original intention.” But originalism has proved an elusive target, not least because it has often been on the move. After initially professing that their guiding light was the framers’ “original intent,” originalists next suggested that they were actually concerned with discerning the ratifiers’ “original understanding,” before settling, finally, on the constitutional text’s “original meaning” among the public. Primary among the manifold problems with the initial two formulations is the apparent requirement that constitutional interpreters peer into the minds of various historical actors, and the possibility that those actors may well have held competing rather than complementary conceptions—assuming the actors had formed any conceptions at all. Such inquiries invited an interpretive subjectivity—but that was precisely what originalism sought to diminish, if not to eliminate. By elevating original meaning as the hallmark, originalists meant to shift the focus away from what the framers and ratifiers thought and toward what they actually did, in the form of the constitutional text.

This elevation of the Constitution’s original meaning had the effect of inadvertently creating the potential for space between the expansive language that the framers often used and the specific results that the framers anticipated that their language would initially yield. Traditionally, conservative originalists have aimed to keep those two concepts yoked together as tightly as possible, suggesting that the framers’ “original expected applications” serve—in a very real sense—to define broad constitutional language. Thus Balkin explains that “even though conservative originalists may distinguish between the ideas of original meaning and original expected applications in theory, they often conflate them in practice.” In other words, Justice Scalia talks the original meaning talk, but he walks the original expected application walk.

Except, of course, when he does neither. Scalia tempers his brand of originalism with a heavy dose of stare decisis, the judicial principle that counsels respect for prior decisions. Even though Scalia’s legal philosophy would have precluded him from joining many revered judicial opinions were he deciding the cases in the first instance, stare decisisenables him to avoid demanding that these decisions now be overruled. But as Balkin perceptively observes, this reliance on stare decisis places Scalia in the unenviable position of viewing some of the Supreme Court’s most inspiring decisions as “unfortunate blunder[s] that we are now simply stuck with because of respect for precedent.” Balkin correctly contends that perceiving modern constitutional law “as a series of errors that … would now be too embarrassing to correct” is itself an embarrassment for Scalia’s theory, as it “confuses achievements with mistakes.”…

Read it all.

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