OPINION:
LIVING ORIGINALISM
By Jack M. Balkin
Belknap/Harvard University Press, $35, 474 pages
The central tension in American constitutional law for decades has been between originalists and advocates of a “living Constitution.” Originalists say the meaning of the Constitution does not change over time - and in order to figure out what the Constitution means, judges and other interpreters should study the time period in which it was enacted and try to ascertain what it meant to the people involved. Living-constitutionalists, on the other hand, say there is no reason we should be bound by laws passed ages ago and that we’re free to adapt old laws to suit our times.
The title of law professor Jack M. Balkin’s “Living Originalism” suggests that it’s intended to represent a middle ground between these two positions. It doesn’t succeed in doing that, but nonetheless, it will rivet anyone who cares about the Constitution.
Mr. Balkin is something of an aberration. For the past five years, he has considered himself an originalist, and he carefully researches the origins of the laws about which he writes, proving that he really does care about America’s history and the true meaning of its laws. However, his findings often strike his fellow originalists as bizarre. For example, he has offered a purportedly originalist argument that abortion is a constitutional right.
“Living Originalism” reveals the source of the tension: Mr. Balkin’s take on “originalism” - when you get right down to it - is not all that different from living constitutionalism. In fact, he describes the approaches as “two sides of the same coin.”
He calls his method “text and principle” - meaning that when interpreting the Constitution, we should look to the text to see if it provides a clear rule, and if it doesn’t, we should look to the underlying principle to which the text refers.
Crucially, in Mr. Balkin’s view, clear rules outlined in the text bind us, but underlying principles do not. For example, when the Constitution says that the president must be 35 years old, that’s that. By contrast, when the Constitution bans “cruel and unusual punishments,” we should research to find out what the Framers thought that meant - but we’re under no obligation to accept their definition.
Mr. Balkin makes a variety of solid arguments for interpreting the Constitution this way - for example, it allows us to celebrate the court rulings that upheld civil rights laws even though most standard originalist theories would say those laws stretched the boundaries of what the Constitution allows. It’s also far easier to reconcile with American history, which is so littered with court rulings that violate standard originalist theories that even Justice Antonin Scalia - arguably the country’s leading originalist - simply accepts most of them rather than trying to overrule them.
“Living Originalism” is unlikely to convert conservatives and standard originalists to Mr. Balkin’s way of thinking. Many originalists became originalists because they wanted to prevent activist rulings such as Roe v. Wade, so they’re unlikely to convert to a new form of originalism that accepts them.
More to the point, Mr. Balkin’s “living originalism” is functionally indistinguishable from living constitutionalism: None but the most rabid living constitutionalists claim that we may elect a 23-year-old president without amending the Constitution first. What they say is that we should feel free to twist the words of the Constitution to suit our present desires - which is precisely what Mr. Balkin says, only with much stronger arguments.
After laying out his basic system for interpreting the Constitution, Mr. Balkin applies it to a variety of controversial topics. These arguments are always interesting and well-researched, and they’re sometimes convincing - but they also will reinforce conservatives’ suspicion that Mr. Balkin’s originalism does not achieve what they think a theory of originalism should.
Take, for instance, his analysis of the commerce clause - which says that Congress may regulate “commerce … among the several states.” The standard originalist narrative is that over time, this clause has been stretched beyond recognition - today, Congress is free to regulate anything that could conceivably be said to have an effect on interstate commerce.
For example, the Supreme Court ruled in 1942 that a farmer who grew wheat for his own consumption could be regulated under this clause simply because, as a result of growing his own wheat, the farmer would have to buy less on the market.
Unsurprisingly, Mr. Balkin supports this expansion of the federal government’s reach. He makes two main arguments: First, the word “commerce” was meant to refer to all forms of “intercourse” between states; second, the clause was meant to be interpreted broadly.
Mr. Balkin offers plausible, if hardly dispositive, arguments for both of these propositions. But the results are truly striking: In Mr. Balkin’s reading, the commerce clause enables Congress to regulate anything that affects interstate matters - for example, the individual health care mandate, as well as anything that might encourage people to move from one state to another. He even admits when the clause is read broadly, “there will be very few things that the federal government cannot regulate.”
Jack Balkin is one of the most insightful scholars working on constitutional issues today, and”Living Originalism” is a great read for any originalist who wants to stop and think every few pages. However, it is unlikely to win many converts.
Robert VerBruggen is an associate editor of National Review.
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