Why Jack Balkin is disgusting.

• Author: Koppelman, Andrew
• Position: Radical model of originalism - Constitutional Commentary, vol. 24, p. 291, 2007

Yale Law Professor Jack Balkin didn't win friends when he announced that (1) he is now a constitutional originalist and (2) the original meaning of the Fourteenth Amendment protects the right to abortion. (1) His claim to membership in the originalist club brought forth a small army of eager bouncers, who were sure that originalism couldn't possibly defend the paradigmatic departure from the Constitution's original meaning. (2)

Balkin has indeed posed a radical challenge to the vision of law that drives many originalists--more radical than he is willing to admit. His theory is in such deep tension with a commonly held vision of the rule of law that his argument is, to put the point precisely, disgusting. But that doesn't mean that he is wrong.

Balkin argues that the best version of originalism is based, not upon the way in which the framing generation would have expected the text to be applied, but rather upon the public meaning of the text. The Fourteenth Amendment enacts principles of equal citizenship. Those principles are violated if the state uses women's capacity for pregnancy as a basis for assigning them a second class status or denying them liberty.

Originalism, Balkin argues, is not inconsistent with the idea of a living constitution, because in practice the meaning of constitutional principles shifts over time. Some constitutional terms, such as "equal protection," are intentionally abstract, leaving the specification to be worked out by later generations. Mobilized social movements, invoking their own interpretations of those texts, play a legitimate role in determining which specification will ultimately prevail. (3) The constitutional protection of sex equality, for example, is the consequence of the feminist movement of the 1970s, which changed the mind of the public in a way that eventually was reflected in the interpretation of the Constitution. (4) The triumph of gun rights in District of Columbia v. Heller (5) is another example. (6)

Some originalists have disputed Balkin's specific argument about abortion, but that disagreement doesn't explain the scandal that Balkin has provoked. (7) The real issue is the suggestion that originalism is capacious enough to support this result. The idea that social movements shape constitutional law is particularly distressing to originalists, who are committed to the idea that the Constitution's meaning does not shift over time. John McGinnis and Michael Rappaport write, "it is a little difficult to see what is left of a recognizable originalism, not to mention the amendment process, if social movements have such substantial discretion to apply constitutional provisions as they see fit." (8) Steven Calabresi and Livia Fine claim that Balkin's originalism "substitutes the rule of engaged social movements for the rule of law." (9)

These charges draw blood only if there is a feasible alternative to the world contemplated by Balkin--an originalism that purges adjudication of discretion and the vagaries of political change.

Balkin's argument is both descriptive and normative. The descriptive part is an account of how constitutional interpretation is done in the United States--how constitutional interpreters in this culture make their way from the spectacularly vague commands of "equal protection" and "due process" to determinate legal outcomes. The normative part pronounces this process good. Like so many liberal legal theorists in the age of the Rehnquist and Roberts Courts, Balkin is a stodgy defender of the status quo.

Putting it this way, however, understates the radicalism of his conservatism. His earlier writings imply that it is simply impossible for constitutional law to have the fixity and determinacy that his critics long for. Constitutional interpreters are condemned to be free. (10)

The giddy vertigo implicit in Balkin's theory is made clearer in his earlier book, Cultural Software (11)--a book he has not so much as mentioned for several years now, for reasons we will consider shortly. Cultural Software ambitiously seeks to synthesize evolutionary biology, hermeneutics, semiotics, anthropology, psychology, linguistics, sociology, and many other disciplines into a unified theory of ideology.

Following the evolutionary biologist Richard Dawkins, Balkin argues that the basic units of thought are "memes," contagious ideas, traditions, styles, and behaviors that manage to get themselves transmitted from one mind to another. Handshakes, melodies, cliches, styles of dress are all memes; they "encompass all the forms of cultural know-how that can be passed to others through ... imitation and communication." (12) These are combined, in a necessarily ad hoc and untidy way, into the "abilities, associations, heuristics, metaphors, narratives, and capacities that we employ in understanding and evaluating the social world." (13)

How is it that given memes manage to replicate themselves over time? Balkin suggests that there is no single answer to this question. The difference between a meme and a gene is that biologists have converged on a single account of what a gene is and how it replicates itself. Memes, on the other hand, replicate themselves in a bewildering variety of ways. The tune "Three Blind Mice" manages to perpetuate itself from one generation to the next; so does the practice of brushing teeth; but the mechanisms are different.

Sometimes these heterogeneous mechanisms are mutually reinforcing. The persistence of racism is an example. Racism can be produced by "dissonance reduction among subordinate groups, by conceptual imperialism among dominant groups, by faulty inferences from prototypes and salient examples, by conceptual homologies that oppose blackness and whiteness, by suppression and projection of superior and inferior associations, by social scripts featuring stock characters and expectations about ethnic groups, and by recurrent cultural narratives about the American 'savage war.'" (14) These different cognitive tools are mutually reinforcing. "Ideological mechanisms are the result of bricolage and circumstance; their heterogeneity...