Originalism and its discontents (plus a thought or two about abortion).

• Author: Berman, Mitchell N.
• Position: Response to article by Jack M. Balkin in this issue, p. 291

In Abortion and Original Meaning, (1) Jack Balkin presents an intriguing new argument for the soundness of the result, though not the reasoning, of Roe v. Wade. (2) Balkin is one of his generation's widest ranging and most consistently engaging legal theorists, and his analyses of the original principles undergirding the Fourteenth Amendment and how they bear on the debate over abortion is characteristically thought-provoking. But they are offered in service of a "larger purpose"--namely, "to demonstrate why the debate between originalism and living constitutionalism rests on a false dichotomy." (3) Once we "reject the assumption that fidelity to the [constitutional] text means fidelity to original expected application," Balkin contends, we ought instead to agree that "constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text." (4) In maintaining such fidelity, however, "[e]ach generation makes the Constitution their Constitution by calling upon its text and its principles and arguing about what they mean in their own time." (5) It follows, Balkin claims, that "[t]he choice between original meaning and living constitutionalism ... is a false choice." (6)

I believe that Balkin mischaracterizes contemporary originalism. Although Justice Scalia constitutes a striking--but possibly only partial--counter-example, an overwhelming number of contemporary constitutional theorists who actively defend originalism have already rejected the assumption that Balkin asks them to reject. While there does exist a live intramural disagreement among originalists concerning whether to abide by the originally intended meaning of the framers (or ratifiers) of constitutional text or the text's original public meaning, almost nobody espouses fidelity to the originally expected applications.

More important, though, is what follows once we all reject what Ronald Dworkin dubbed "expectation originalism." (7) Balkin's conclusion that originalism and non-originalism present a false choice rests squarely on his argument that fidelity to the Constitution requires fidelity to its original meaning and precludes contemporary interpreters from interpreting its text in accordance with other principles that the text can bear. (8) But nonoriginalists simply do not agree that fidelity to the Constitution requires fidelity to the original meaning "and the principles it was designed to enact." (9) And nothing in Balkin's article, I will argue, should convince them that what they see as a true choice is in fact a false one. In short, then, Abortion and Original Meaning is unlikely to make anybody happy: Its empirical claims about the state of originalist argumentation are apt to gall the originalists, while its normative (or perhaps conceptual) claims about what constitutional interpretation requires will fail to move the non-originalists. Part I of these remarks argues that theorists in both camps have reason to be dissatisfied.

Of course, even if Balkin's claims about interpretive theory fail, his narrower arguments about abortion rights might nonetheless succeed. Unfortunately, I do not believe that Balkin offers us a sounder basis upon which to rest the conclusion that legislative prohibition of abortion is unconstitutional. Part II briefly explains why.

1. ORIGINALISM AND LIVING CONSTITUTIONALISM

   1. EXPECTATION ORIGINALISM: NOT A TRUE OPPONENT

      According to Balkin, self-described originalists, along with their adversaries, believe that expected applications of constitutional provisions are binding on present-day interpreters. This, he argues, is an unsatisfactory view. I agree. (10) The question, though, is whether it's a live one. After all, the view was addressed at length a decade ago--and, I would have thought, demolished-in an important article by Mark Greenberg and Harry Litman. (11) As they explained, "original meaning, properly understood, must contemplate the possibility that a traditional practice is unconstitutional." (12) In part, this is because, as they argued with care, "requiring fidelity to original practices is inconsistent with interpreting constitutional provisions to stand for principles." (13) Not surprisingly, then, leading academic defenders of originalism have been disavowing expectation originalism for years. Writing just last year in the Yale Law Journal, for example, Michael Paulsen protested that it is "a caricature of originalism" to portray it as "a version of crude intentionalism that focuses on the specific subjective intentions or expectations of individuals as to how a provision might be applied." (14) Michael McConnell was even more blunt. "[N]o reputable originalist, with the possible exception of Raoul Berger, takes the view that the Framers' 'assumptions and expectations about the correct application' of their principles is controlling," he argued a decade ago. "Mainstream originalists recognize that the Framers' analysis of particular applications could be wrong, or that circumstances could have changed and made them wrong." (15)

      Swimming against this tide, (16) Balkin asserts loosely that "[o]riginalists generally assume that if we do not apply the constitutional text in the way it was originally understood at the time of its adoption we are not following what the words mean and so will not be faithful to the Constitution as law," and that "they have tended to conflate two different ideas--the expected application of constitutional texts, which is not binding law, and the original meaning, which is." (17) "Many originalists," he adds, "have encouraged this conflation ... [and] living constitutionalists too have mostly accepted this conflation without question." (18) But the evidence offered of this supposed general assumption and tendency toward conflation is sparse. In fact, the only originalist theorist Balkin discusses at any length is Justice Scalia who, says Balkin, "insists that the concepts and principles underlying [the constitutional text] must be applied in the same way that they would have been applied when they were adopted." (19)

      As I read him, Scalia's relationship to expectation originalism is more complex. In response to Dworkin's distinction between semantic and expectation originalism, after all, Scalia did expressly avow his allegiance to the original public meaning of the constitutional text and disavow fidelity to "the concrete expectations of lawgivers." (20) On the other hand, Balkin is surely correct that much of Scalia's writing, both academic and judicial, does appear to endorse and rely upon the expectation originalism that he purports to reject. Because Scalia's efforts to explain away the apparent disparity ring, to me at least, rather false, (21) de determining how best to make sense of Scalia's conflicting signals is no mean feat. (22) I won't try. Despite my quibbling, then, I'm content for present purposes to accept Balkin's description of Scalia as a proponent of expectation originalism.

      But even granting Scalia, who else? As best I could tell, Balkin cites only three other proponents of the expectation originalism that is his target--Robert Bork, Raoul Berger, and Clarence Thomas. (23) Frankly, I am uncertain about Berger and Thomas; we are not favored with page citations or parentheticals that might either substantiate Balkin's claim or at least help us to assess it. (24) But the inclusion of Bork on this list strikes me as mistaken--and revealingly so. Of the two pages in The Tempting of America to which Balkin draws our attention, one (page 159) has no obvious bearing on the question at all. And on the other page (144) Bork's point is solely to make clear, in the face of apparently conflicting views he had expressed two decades earlier, that he espouses original meaning originalism over original intent originalism; that is, he favors the original public meaning of the text over the subjective semantic intentions of any specific individuals. But this is not to espouse fidelity to the original expectations the framers or ratifiers might have had about how the textual meaning would apply.

      Were there any real doubt about this, consider Bork's famously unpersuasive effort to establish that Brown v. Board of Education is consistent with originalism. That argument, most readers will recall, runs like this: the original understanding of the Equal Protection Clause incorporated the principle of "equality" or "equality before the law"; the ratifiers believed or assumed that racial segregation was consistent with such equality; and, when the inconsistency became apparent, the Court properly gave effect to the originally understood principle and not to the originally expected, though mistaken, application of that principle. (25) Whatever the argument's faults, (26) it rests squarely on Borks rejection of expectation originalism and his endorsement of something very much like the meaning-and-principle originalism that Balkin favors--though admittedly without Balkin's emphasis on the plasticity, contestability or fluidity of underlying principles.

      Perhaps Balkin is misled into thinking that expectation originalism is more widespread than it is by his view that "[w]hen people use the term 'original understanding,' and sometimes even 'original meaning'--as Scalia does--they are actually talking about original expected application." (27) Again, the basis for this claim escapes me; indeed, I think the claim is unlikely to be true.

      For a keen illustration, consider how Justice Scalia analyzed the question, raised in Minnesota v. Dickerson, (28) of whether the Fourth Amendment permits police to seize contraband detected during a Terry frisk. (29) After insisting that "the terms in the Constitution must be given the meaning ascribed to them at the time of their ratification," (30) Scalia proceeded to recognize that the scope of the application of those terms could change. "[E]ven if a 'frisk' prior...