The perpetual anxiety of living constitutionalism.

• Author: Leib, Ethan J.
• Position: Response to article by Jack M. Balkin in this issue, p. 291

It certainly seems like the originalists are winning. Professor Jack Balkin--finding that he couldn't beat 'em--joined them. (1) Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote "we are all living constitutionalists now." (2) But Balkin has forsaken them. Losing such an important advocate might be a sign that what some once deemed the "ascendant" and dominant theory in constitutional interpretation is on the decline. (3) Still, don't count living constitutionalism out of the game just yet--and don't think one can embrace Balkin's approach and a true living constitutionalism at the same time.

We have before us in Balkin's new constitutional theory a lefty originalism to join another prominent conception of the same propounded by Balkin's colleague, Akhil Amar. (4) Lefty originalism, however, is not some new Yale invention. (5) Hugo Black and John Hart Ely might be part of its old guard. Still, Balkin's coming-out as a lefty originalist now self-consciously aims to bury living constitutionalism as an independent theory and disarm its power. Balkin tells us that the choice between "originalism" and "living constitutionalism" is overdrawn and "rests upon a false dichotomy." He argues that we must maintain fidelity to the original meaning of the document--but that fidelity is achieved by committing to the original meaning of "text and principle" rather than to the "original expected application" of those texts and principles. The former is "binding law" and the latter is not. Once we embrace this distinction, Balkin contends, we can retain the flexibility and adaptability that underwrites what he takes to be living constitutionalism's agenda and simultaneously pledge allegiance to an original meaning originalism. His final result is an impressively original and respectably originalist defense of abortion rights under the United States Constitution.

But why are the Constitution and its original principles binding, again? And is living constitutionalism really dead after Balkin's coup de grace (or is it a coup d'etat)? An anxious approach to the first question should lead to a negative answer to the second. In short, living constitutionalism's core animating anxiety is that the Constitution (and most especially its original meaning) may not be binding--and that anxiety leads to interpretive mechanics that are fundamentally in tension with the interpretive mechanics that originalists prefer. (6) On this important measure, Balkin is now an originalist through and through; and living constitutionalism remains alive as a real alternative. Living constitutionalism is more than a pedestrian desire for flexibility and adaptability, an excuse for nominally liberal results, and an attempt to have a "conversation between the generations" about vague and ambiguous clauses in the Constitution.

I want to focus here on a relatively underdeveloped aspect of Balkin's paper: his quick dismissal of living constitutionalism and his underlying assumption that living constitutionalists will be able to embrace his approach without difficulty. To be sure, many originalists will read Balkin to be a living constitutionalist in disguise--and may not let him into their club, notwithstanding his bona tides as an adept historian of the Fourteenth Amendment. But my main thesis here is that Balkin should no longer be welcomed by the living constitutionalists, despite his claim to be meeting their fundamental needs. (7)

Balkin's discussion engages originalists, first and foremost. Although he devotes substantial effort to rejecting an "original expected applications originalism," he still aims to demonstrate his street credibility as an originalist. Indeed, living constitutionalists get little more than a passing mention in Balkin's paean to original meaning. We get no real flavor of what a coherent account of living constitutionalism might look like--nor how Balkin's approach might leave living constitutionalists satisfied that his unifying theory meets their concerns. It may be that the very metaphor of a living constitution is full of "teasing imprecision," as former Chief Justice Rehnquist once wrote: But once I explicate a bit about living constitutionalism here (or one variant thereof), I should be able to establish how Balkin's "text and principle" methodology fails to accommodate fully the center of living constitutionalism. Original meaning originalism and living constitutionalism are hardly, as Balkin concludes, "opposite sides of the same coin." Indeed, they trade in different currencies.

Under any reading of originalism, lefty or otherwise, history is its main currency. First-order constitutional interpretation is a project of uncovering some historical truth or reconstruction about the text and structure of the Constitution. In this regard, Balkin's originalism is no different from any other: the original public meaning at the time of ratification is at the core of the theory and it achieves a privileged position in Balkin's interpretive project. Although this is not always perfectly clear in Balkin's discussion of his theory, I take him to be distinguishing between the "text and principles" that are to be derived only from their original historical meaning--which he deems immutable and binding--and the "application and implementation" thereof--which can change with the times. Tying the text and principles to the historical fact of the matter is his basic concession to originalism, whereas his flexibility in application and implementation is his attempt to incorporate living constitutionalism.

Different kinds of originalists, however, admit different modalities of constitutional interpretation into constitutional decision-making in further iterations of the interpretive process. So Scalia's "faint-hearted" originalism, to take a widely discussed example, yields to precedent and prudential considerations occasionally. (11) Randy Barnett's theory of "constitutional construction" helps fill the gaps left over after first-order originalism does its work and vagueness remains. (12) And Balkin's original meaning originalism, though self-consciously rather different from Scalia's originalism and Barnett's construction, also allows different modalities to fill out and apply the "text and principles" in a conceptually later stage of constitutional interpretation. Balkin's rights to abortion have their roots in historical excavation--that is where the original meaning of the principles comes from. But the principles gain flesh and heft through a variety of constitutional modalities that help "translate" the principles (with fidelity, fit, and justification) for our time. Balkin's specification and translation of his "text and principles" may depart too far from original meaning for some originalists' taste but there is no doubt that Balkin's procedure involves a conceptually prior historical project in the first instance.

To generalize only somewhat, originalists seem to agree that first-order debates about constitutional interpretation are questions for history. This has all kinds of benefits, which is why originalism is attractive to so many: It is parsimonious; it gives us ground to debate hard questions at some remove from our personal political and moral preferences; it may keep judges in check so they don't impose their preferences upon us; it may allow our confirmation battles to be less explosive (assuming everyone bought in); (13) and it may be the best way (or only way!) to get at the very meaning of the text itself. (14) This is why some originalists think originalism is simply the pragmatic choice: it is, perhaps, a lesser evil, there is no good and coherent competitor, and democratic legislatures and social movements will function better if we embrace its elegant minimalism.

It bears repeating, I think, that although originalists are unified about first-order interpretation that draws upon the history and historical sources surrounding ratification, there are certainly intramural disagreements among the originalists about what sorts of considerations may legitimately be considered at the "back end," once a meaning or original principle is derived historically. Indeed, Balkin invites us to see constitutional interpretation as a two-stage process (text and principles, then application and implementation)--and all originalists give history pride of place at the first stage. From there, there are some divergences about application: decision-makers occasionally smuggle doctrine, consequences, prudence, construction with a "liberty presumption," practice, and political morality through the back door to keep originalism palatable or to translate its historical commands for our time. Although some originalists deny that there can be any gap between the first order inquiry and ultimate constitutional decision-making, it cannot easily be denied that many originalists depart from their first-order inquiry after excavating some "original meaning." Because Balkin clearly prioritizes history in his first order inquiry into "text and principles," the originalists should welcome him to their team. (15)

Living constitutionalists, by contrast, trade in a different currency. They simply do not privilege history (of ratification) in constitutional interpretation. They don't necessarily sideline text, history, and structure; these are just parts of the motley constellation that is constitutional interpretation. Balkin is undoubtedly right that living constitutionalists are particularly concerned with the "dead hand of the past" controlling the present generation." But precisely because they are, they cannot be content with Balkin's methodology: original meaning originalism--even Balkin's kind that allows contemporary translations on the "back end"--gives pride of place to the very dead hand living constitutionalists are convinced we must resist to maintain the document's present-day legitimacy...