Original interpretive principles as the core of originalism.

• Author: McGinnis, John O.
• Position: Response to article by Jack M. Balkin in this issue, p. 291

Abortion and Original Meaning is a powerful article that is sure to have resonance in the field of constitutional interpretation. Professor Balkin undertakes what many previously would have thought a conjuror's trick: he attempts to locate the constitutional right to abortion, the poster child for imposition of the judiciary's own idiosyncratic values, in the original meaning of the Constitution. And he seeks to accomplish this feat by purporting to show how the theory of the living constitution is really an orginalist theory, once original meaning is properly divorced from the framers and ratifiers' expectations of how the provisions would be applied--what Balkin calls "original expected applications."

As such, the article has great strategic value: it attempts to appropriate for the living constitution philosophy the intellectual capital and public respectability that originalism has earned recently in the academy as well as the wider world. Even more boldly, it brands those who have claimed to be originalists as heretics to the true religion, on the ground that their focus on the original expected applications kills the document's vitality. By contrast, Balkin claims that his focus on the principles of the original meaning gives it life.

In our view Balkin presents a false dichotomy--either embrace abstract principles whose meaning is almost infinitely malleable or confine the Constitution to the applications the Framers imagined. We believe there is a middle way that is also a better way. Under this view, the Constitution's original meaning is informed by, but not exhausted by, its original expected applications. In particular, the expected applications can be strong evidence of the original meaning. Moreover, reasonable people at the time of the Framing likely embraced such principles of interpretation and, as we shall show, it is their principles of interpretation that should guide the content of originalism, not Balkin's or anyone else's exegesis of the essence of true originalism.

In this brief reply we first argue that Balkin lacks a strong justification for following originalism of any kind. We also show that the best justification for originalism--that originalist interpretation is most likely to lead to good consequences--suggests that one should follow the principles of interpretation that a reasonable person at the time of the framing and ratification thought would be applied to the Constitution. Applying different principles severs the Constitution from the process which ensured that the Constitution had consensus support, and it is that consensus support that is the best guarantee of the Constitution's contemporary beneficence. Second, we briefly address the role of precedent in constitutional originalism. While Balkin suggests that reliance on precedent is a problematic move for originalists, we argue that the original meaning of the Constitution allows for the use of precedent.

Finally, we show that a reasonable person at the time of the Framing was more likely to have embraced interpretative principles that considered expected applications than Balkin's abstract "originalist" principles. In a short comment, we confine ourselves to brief outlines of two important points. First, people at the time of the enactment of the Constitution would have been unlikely to eschew expected applications because such applications can be extremely helpful in discerning the meaning of words. (1) Balkin's disregard of expected applications discards important information that would impede Balkin from reaching the results he desires. Second, risk-averse citizens would be unlikely to adopt interpretive principles of the kind Balkin advocates--a kind of free-form textualism glossed by the meaning which social movements of each generation give to the text. Such principles carry a great deal of risk, because they do not protect the nation against the effects of social movements that pursue undesirable policies.

1. JUSTIFYING ORIGINALISM

   Balkin does not offer a very thick justification of originalism. He says: "Constitutional interpretation by judges requires fidelity to the Constitution. Fidelity to the Constitution means fidelity to the words of the text, understood in terms of their original meaning, and to the principles that underlie the text." But this formalist defense is insufficient to provide a normative defense of originalism and is so vague that it does not provide any guidance as to the content of the originalism that is to be defended.

   Professor Balkin's normative defense proves insufficient, because he does not provide a persuasive reason why we should follow the original meaning of the Constitution, regardless of whether the Constitution or the process that led to its enactment were desirable. Assume, for instance, that an undesirable constitution was fabricated by a single individual and forced on the polity. Would we be obliged to follow this document, simply because it was the legal text that called itself the Constitution? It is a curious position for someone who defends the living Constitution to offer a justification of an interpretive theory of originalism that disregards the consequences of the Constitution for those living at the time of its enactment, let alone those living today.

   Moreover, it is unclear from this justification why fidelity should be limited to the enactors' principles. There is nothing intrinsic to the concept of fidelity that requires that we ignore their intended or expected applications and follow only their principles. Indeed, it seems odd to say that you are being a faithful agent if you do something of which you know the principals would have disapproved simply because the action followed a general principle that you purport to derive from their command. Perhaps that is one possible understanding of fidelity, but hardly the only one. For instance, when interpreting statutes, many people believe that fidelity requires hewing closely...