Living Originalism.

• Author: Siegel, Neil S.
• Position: Book review

LIVING ORIGINALISM. By Jack M. Balkin. Cambridge and London: Harvard University Press. 2011. Pp. 339. $35.

INTRODUCTION

Jack Balkin's Living Originalism (1) is a sweet read. It is beautifully written, illuminating, and provocative. It is conducive to deep reflection about foundational questions.

In the book, 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 (p. 130). First, he provides a systemic account of constitutional change, which he calls "living constitutionalism." Second, he offers an approach to constitutional interpretation and construction, which he calls "framework originalism." These two components--living constitutionalism and framework originalism--together constitute his overall theory of "living originalism."

Reasoning from the systemic perspective, Balkin develops an attractive theory of the processes of constitutional change. His account features prominently the roles of citizens, social movements, civil society, politicians, and judges in shaping the meaning of the Constitution in practice. His approach is descriptively more accurate than its main competitors and normatively appealing in its emphasis on the need for invested participants in the constitutional system to continuously perceive and vindicate the preconditions for the legitimacy of the system.

Balkin may, however, be too quick to dismiss a concern held by some invested participants. These participants fear "that arguing that their views are correct is ... undermined ... by the theory of how the constitutional system produces legitimacy over time" (p. 131). To understand from the systemic perspective that "we are ... participants in a constitutional system in which dissent and contestation, persuasion and argument, help make the system democratically legitimate over time" (2) is to acknowledge that the meaning of the Constitution in practice changes over time. It is, therefore, to stare the fact of interpretive discretion in the face. (3) And facing up to the fact of discretion encourages consciousness of one's own consciousness, which may cause those who suffer from "modernist anxiety" to question whether they can be confident that their own constitutional views are correct. (4) Such self-confidence, however, underwrites effective advocacy for those who do not consider themselves free to act as if they were certain they were right when they are, in fact, not certain. (5)

Reasoning from the individual perspective, Balkin provides a persuasive, if imperfect, account of the characteristic importance of constitutional text in the American tradition. But Balkin does not seem to register the potential consequences of turning to "originalism" given how long the term has been associated in public debates with a conservative political practice. A progressive declaration in 2013 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. Those who 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.

Part I describes Balkin's "living originalism." It separates the theory into its component parts and then considers the theory as a whole. Part II analyzes some potential consequences of embracing Balkin's living constitutionalism. It mostly applauds his systemic account of constitutional change but questions its compatibility with effective advocacy from the individual perspective. Part III examines the case for Balkin's framework originalism. It argues that framework originalism better accounts for the presumptively exalted status of the constitutional text than does David Strauss's common law constitutionalism, but questions the political consequences of embracing the "O" word. This Review concludes by identifying a common theme connecting the concerns expressed here about Living Originalism. That common theme is the difference between constitutional theory in an ideal world and constitutional theory in the fallen world we inhabit. In this fallen world, our adversaries may not fight fair, we may feel disconnected from the past, and our words may have effects in the world that we do not intend but that we ignore at our peril.

1. LIVING ORIGINALISM

   As a description of Balkin's project, "living originalism" may seem a misnomer. An "originalism" that is "living" may be a contradiction in terms. After all, "[1]iving constitutionalists argue that the practical meaning of the Constitution changes--and should change--in response to changing conditions." (6) "Originalists," by contrast, "argue that some aspect or feature of the Constitution is fixed when the Constitution---or a subsequent amendment to the Constitution--is adopted, that it is fixed because of the act of adoption, and that this fixed meaning is binding as law today." (7) If living constitutionalism focuses on flux, originalism focuses on fixity.

   As these quotations indicate, Balkin is hardly confused about this. His "living originalism" is best viewed as a contraction. It combines two ideas--living constitutionalism and framework originalism--that together constitute his overall theory. In Balkin's work, "living constitutionalism" plus "framework originalism" equals "living originalism." I consider each component separately and then consider them together.

   1. Living Constitutionalism

      If constitutional theories had colors associated with them, originalism's banner would be black or blood red. These colors symbolize death, and originalists like Justice Scalia praise the "dead" Constitution. (8) In vivid contrast, living constitutionalism would fly a green flag. If any season symbolizes life, it is spring, and if any color symbolizes springtime, it is green.

      Judging from the front of the jacket of Balkin's book, which is mostly black and deep red with just a hint of green light shining through, one might think that his theory is more originalist than living constitutionalist. (One might further suspect this because "living" modifies "originalism" in the book's title.) The back of the jacket, however, is all green. Moreover, when one opens the book, one notices that the jacket is all green on the inside as well. And if one removes the jacket, one observes that the book cover itself is mostly green. Finally, if one sifts through the first few pages, one discovers that Balkin dedicates the book to his Yale colleagues Reva Siegel and Robert Post, two prominent living constitutionalists. (9) All of this is symbolically appropriate. In Balkin's theory, living constitutionalism is no qualifier or sideshow. It is the main event.

      Balkin argues that each generation of Americans must implement the Constitution's text, rules, standards, and principles in its own way, which it does "through building political institutions, passing legislation, and creating precedents, both judicial and nonjudicial" (p. 3). He calls this process of fleshing out the often underdeterminate constitutional text "constitutional construction." According to Balkin, constitutional constructions by previous generations help to "shape how succeeding generations will understand and apply the Constitution in their time" (p. 4). He distinguishes constitutional construction from constitutional interpretation, which he defines as the act of ascertaining the original semantic meaning of the text (p. 4).

      "Living constitutionalism" is Balkin's term for this interpretive account of how the American constitutional system functions and legitimates itself. In his view, this account is "the best way to understand the interpretive practices of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees" (p. 4). Balkin underscores that living constitutionalism validates the fruits of this social practice, fruits that many Americans today view as the practice's greatest achievements rather than as pragmatic exceptions or mistakes that they are stuck with out of respect for stare decisis. (10) Examples of these fruits include Brown v. Board of Education (11) and the civil rights revolution, Social Security and other safety-net programs, and the equal citizenship stature of women. (12)

      In Balkin's hands, then, living constitutionalism explains the role of constitutional politics in shaping constitutional constructions.13 It also provides "a theory about how the entire system of constitutional construction--including the work of the political branches, courts, political parties, social movements, interest groups, and individual citizens--is consistent with democratic legitimacy" (p. 279). Living constitutionalism does not tell judges how to decide constitutional questions.14 Indeed, it is not a theory of how anyone should decide constitutional questions. Balkin does not view living constitutionalism as a decisional approach that can compete with the various flavors of non-Balkinian originalism.

   2. Framework Originalism

      If constitutional construction does the work of building out, and if living constitutionalism explains how that building out occurs and legitimates itself, "framework originalism" identifies what is being built out. This phrase captures Balkin's view that the Constitution provides "an initial framework for governance that sets politics in motion" (p. 3)...