Original meaning and constitutional redemption.

• Author: Balkin, Jack M.
• Position: Response to articles in this issue, p. 353, 371, 383, 405, 417

One of the many benefits of having one's ideas analyzed by a group of intelligent and able commentators (1) is that they improve the work by showing the author which parts of the argument need to be clarified, which parts need to be adjusted, and which parts are really central to one's views. With gratitude for their careful attentions, I take this opportunity to clarify, adjust and foreground parts of my argument in Abortion and Original Meaning. (2)

In Abortion and Original Meaning I argued that fidelity to the Constitution requires fidelity to the original meaning of the constitutional text and to its underlying principles. I also argued that each generation makes the Constitution their constitution by calling upon its text and principles and arguing about what they mean in their own time. These claims are part of a larger argument about what makes our constitutional system legitimate and what functions a constitution like America's serves and should serve. In this response, I argue that a key element of constitutional interpretation is our attitude of attachment to the constitutional project and our beliefs about its ultimate trajectory. This is the question of our faith in the constitutional system, which is also, as I shall explain, a faith in its redemption through history. Hence my theory of text and principle is also a theory of redemptive constitutionalism.

1. WHY ORIGINAL MEANING?

   In Abortion and Original Meaning I argued that the choice between originalism and living constitutionalism is a false one, and that I regard myself both as an originalist and as a living constitutionalist. That may seem strange to some readers, who have grown accustomed to thinking that living constitutionalism is just a form of non-originalism. However what we call "nonoriginalism" depends on what we think originalism entails? Given any particular version of originalism, non-originalism means only that we reject that originalist's view of what fidelity to the Constitution requires. Now I argue that fidelity to the Constitution means fidelity to the original meaning of the Constitution's text and to the principles that underlie the text. From my perspective, then, a non-originalist is a person who argues that we do not have to be faithful to the original meaning of the Constitution's text or to its underlying principles. But living constitutionalists need not be non-originalists of that sort, and, in my view, they should not be.

   Several of the commentators objected that I did not provide an argument for interpreting the Constitution according to its original meaning, or indeed, for any form of originalism at all. In fact, I did make such an argument, but it was stated so briefly that it may have passed notice. (4) Therefore I now offer a more extended argument for adhering to the original meaning of the text.

   1. THE ARGUMENT FROM A WRITTEN CONSTITUTION

      The American Constitution is a written constitution, and it is enforceable law. Both of these facts are worthy of note. Americans did not have to choose a written constitution. The most obvious model in 1787 would have been the British Constitution, which consisted largely of customary practices and precedents. In addition, the American Constitution did not have to be enforceable law. It could have been just be a political statement of principles, like the Declaration of Independence. But if we consider our written Constitution to be law, then we should interpret and apply it as we do other kinds of laws, and, in particular, statutes. This has two consequences.

      First, generally speaking, once statutes are legitimately enacted by those authorized to enact them, the statutes continue to bind us as laws until they are amended or repealed. That is so even though the people who originally had authority to create the laws are long dead and gone. That is why even statutes passed many generations ago are still law today. I do not argue that this is necessary to the conception of law. One could have a legal system with a generally recognized metarule that all statutes expire after fifty year's time. (Presumably, the metarule would not apply to itself). But we do not have such a metarule for statutes in the United States. (5)

      Second, we normally try to interpret the statutory terms according to the concepts the words referred to when the statutes were first enacted. (6) We do this to preserve legal meaning over time. Why is it important to preserve meaning over time? It follows from the assumption that law continues in force over time until it is amended or repealed. If the law states a directive, rule, or norm that continues in force over time, we must preserve the meaning to preserve the directive, rule, or norm that the law states. Suppose we did not follow this practice. Then, if the commonly accepted meaning of the words changes over time, the legal effect of the statute will change as well, and it will change not because of any conscious act of lawmaking by anyone in particular, but merely because of changes in how language assigns concepts to words. (7)

      Let me give a simple example. Article IV section 4, the Guarantee Clause, states that "The United States shall guarantee to every State in this Union, a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence." (8) In 1787 the words "domestic Violence" generally meant riots or disturbances within a state (as opposed to foreign attack); today the words primarily refer to assaults and batteries by intimates or by persons living in the same household. If we used the contemporary meaning of the Guarantee Clause rather than its original meaning, the import of the Clause would be completely altered. Moreover it would be altered not due to any change in public values, but simply because linguistic usage had changed. Moreover, today the word "Republican"--the word is capitalized in the original text--refers both to representative government and to the Republican Party, founded in 1856. If we were bound by contemporary meaning rather than original meaning, one could argue that the Constitution guarantees each state a "Republican Form of Government,"--that is, a government controlled by Republicans. (9)

      Here is a less fanciful example: Article I, section 8, cl. 3 grants Congress the power "[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes."(10) Note that the Constitution uses the same word in the same clause--"commerce"--to describe how Congress might regulate interactions "with foreign nations, and among the several states, and with the Indian tribes." (11) When the Constitution was enacted, the word "commerce" meant more than purely commercial activity. It meant "intercourse"--that is, interactions, exchanges, and movements back and forth, including, for example, conversation. (12) The Commerce Clause gave the federal government the power to regulate a wide range of interactions with the Indian tries and foreign nations. (13) Thus, the early Congresses passed a series of Trade and Intercourse Acts beginning in 1790, which not only required licenses for trade with Indians, but also punished "any crime upon, or trespass against, the person or property of any peaceable and friendly Indian or Indians." (14) These crimes did not necessarily involve economic activity; they could involve assault, murder, or rape. (Note that even if the point of regulating these crimes was because of their likely effects on trade with the Indian tribes, the activities regulated were themselves not economic.). If we adopted the contemporary meaning of "commerce," Congress might have reduced power in its dealings with Indian tribes and foreign governments not because of any change in public views about national power, but simply because of changes in linguistic usage.

      That change in meaning would also matter for regulation of "commerce ... among the several states." Despite the early example of the Trade and Intercourse Acts, the Supreme Court has argued that Congress may not regulate non-economic activities (like crime) because of their cumulative impacts on commerce. (15) For example, in 2000, the Court struck down portions of the Violence Against Women Act in United States v. Morrison; (16) it rejected the government's argument that the cumulative impact of violence against women hindered their ability to participate in the public life of the national economy because such violence, no matter how much it affected women's economic choices, was not itself economic activity. (17) As this example shows, that construction of "commerce" may not be consistent with the Constitution's original meaning. The proper question in Morrison was not whether Congress could regulate crime to prevent deleterious effects on commerce--it did so from the very founding of the country in the Trade and Intercourse Acts. Rather, the question was whether the problem of violence against women was a problem "among the several states"--for example, because it featured significant spillover effects between states that individual states could not adequately handle on their own. (18)

   2. THE COMPATIBILITY OF ORIGINAL MEANING AND LIVING CONSTITUTIONALISM

      In fact, I think that the argument for contemporary meaning rests on a subtle confusion. When living constitutionalists argue that we should look to today's meaning rather than original meaning, they usually do not have in mind the rule-like clauses of the Constitution, which they are normally happy to apply according to their original meanings. Rather, they are usually thinking of the abstract or vague phrases of the Constitution: "due process," "equal protection," "cruel and unusual punishments," and "freedom of speech." What living constitutionalists really object to is being limited by the original expected application of these...