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Original Meaning and Constitutional Redemption

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ORIGINAL MEANING AND CONSTITUTIONAL REDEMPTION Jack M. Balkin* One of the many benefits of having one's ideas analyzed by a group of intelligent and able commentators' is that they im- prove the work by showing the author which parts of the argu- ment 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. 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 con- stitutional interpretation is our attitude of attachment to the constitutional project and our beliefs about its ultimate trajec- tory. This is the question of our faith in the constitutional sys- tem, which is also, as I shall explain, a faith in its redemption * Knight Professor of Constitutional Law and the First Amendment, Yale Law School. I would like to thank the contributors to this symposium for their very helpful critiques, and Bruce Ackcrman, Akhil Amar, Sanford Levinson, Lawrence Solum and Kcnji Yoshino for their comments on previous drafts. 1. Randy Barnett, Underlying Principles, 24 CONST. COMMENT. 4(15 (2(107); Mitchell N. Berman, Originalism and Its Discontents (Plus A Thought Or Two About Abortion), 24 CONST. COMMENT. 383 (2007); Dawn Johnsen, The Progressive Political Potency of "Text and Principle", 24 CONST. COMMENT. 417 (2007); Ethan Leib, The Per- petual Anxiety of Living Constitutionalism, 24 C'ONST. COMMENT. 353 (2007); John 0. McGinnis and Michael Rappaport, Original Interpretive Principles as the Core of Originalisin, 24 CONST. COMMENT. 371 (207). 2. Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291 (20117). HeinOnline -- 24 Const. Comment. 427 2007 428 CONSTITUTIONAL COMMENTARY [Vol. 24:427 through history. Hence my theory of text and principle is also a theory of redemptive constitutionalism. I. 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 "non- originalism" 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 Con- stitution'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 con- stitutionalists 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. Therefore I now offer a more ex- tended argument for adhering to the original meaning of the text. 3. Mitch Berman correctly sees this point. Berman, supra note 1, at 383 n.37. Hc assumes, incorrectly, that I seck to "contrast I originalism to living constitutionalism," id., identifying the latter with nonoriginalism, when in fact I mean to do the opposite. There are certainly forms of living constitutionalism that arc non-originalist, but I believe that the best versions of living constitutionalism are also originalist in my sense. 4. The argument was premised on two simple assumptions: IFirstj we have a written Constitution that is also cnforccable law. ISecond,] IwIc treat the Constitution as law by viewing its text and the principles that un- dcrlic the text as legal rules and legal principles.... Wc look to the original meaning of the words because if the meaning of the words changed ovcr time, then the words will embrace different conccpts than those who had the author- ity to create the text sought to refcr to. Wc look to underlying principles be- cause when the text uses relatively abstract and general concepts, we must know which principles the text presumes or is attempting to embrace. lf wc read the text to presume or embrace other principles, then wc may bc engaged in a play on words and we will not bc faithful to the Constitution's purposes. Balkin, supra notc 2, at 303-04. HeinOnline -- 24 Const. Comment. 428 2007 2007] CONSTITUTIONAL REDEMPTION 429 A. 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 Consti- tution, which consisted largely of customary practices and prece- dents. 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 in- terpret and apply it as we do other kinds of laws, and, in particu- lar, statutes. This has two consequences. First, generally speaking, once statutes are legitimately en- acted 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 stat- utes 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! Second, we normally try to interpret the statutory terms ac- cording to the concepts the words referred to when the statutes were first enacted.' We do this to preserve legal meaning over time. Why is it important to preserve meaning over time? It fol- lows 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 5. Although Judge Guido Calabresi famously suggested that we should adopt spe- cial interpretive rules for older, outmoded statutes. See GUIDO CALABRESI, A COMMON LAW FOR TI-iU AGE OF STATUTES (1982). 6. Herc, just as in debates about constitutional interpretation, we should distin- guish the original meaning of words from thcir original expected application. Textualists, purposivists and intentionalists alike all begin with the original meaning of statutory words as best they can dctcrminc it. Thcy disagrec among thcmselves about how and whether to recognize gaps, ambiguities or vagueness in statutory language. They also dis- agree about what to do in the case of gaps, ambiguities or vagueness. William Eskridge's dynamic theory of statutory interpretation, for example, allows interpretations different from what the original legislature might have expected or endorsed because of changing circumstances. WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 5, 52-57 (1994). HeinOnline -- 24 Const. Comment. 429 2007 430 CONSTITUTIONAL COMMENTARY [Vol. 24:427 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 as- signs concepts to words Let me give a simple example. Article IV section 4, the Guarantee Clause, states that "The United States shall guaran- tee to every State in this Union, a Republican Form of Govern- ment, 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."' 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 con- temporary 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 capital- ized in the original text-refers both to representative govern- ment and to the Republican Party, founded in 1856. If we were bound by contemporary meaning rather than original meaning, 7.
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