In his forthcoming article, Original Meaning and Abortion, Jack Balkin makes the startling disclosure that he is now an originalist. "[C]onstitutional interpretation," he writes, "requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. The task of interpretation is to look to original meaning and underlying principle and decide how best to apply them in current circumstances. I call this the method of text and principle."
In this brief reply, I caution that, to remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text we are expounding. And it is the text, properly interpreted and specified in light of its underlying principles, not the underlying principles themselves, that is to be applied to changing facts and circumstances by means of constitutional doctrines. There is another highly familiar and very nonoriginalist way to see the relationship between "text and principle": One could discern the principles underlying the text, and then apply these principles directly to new circumstances. By so doing, one can end up potentially expanding the reach of, and even contravening, the text itself. Because Balkin sometimes appears to be endorsing the second of these two approaches to text and principle in this paper, he may give some readers the mistaken impression that he is still employing a living constitution approach under the guise of original meaning originalism.
In his contribution to the symposium, Ethan Lieb agrees that Balkin's move to originalism is both real and significant:
It certainly seems like the originalists are winning. Professor Jack Balkin — finding that he couldn't beat 'em — joined them. Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote we are all living constitutionalists now. 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. Still, don't count living constitutionalism out of the game just yet.
You can read Ethan's article, "The Perpetual Anxiety of Living Constitutionalism," here.
Interestingly, in his article, Ethan wrongly guesses that my reaction to Balkin will be similar to my reaction to Justice Scalia's originalism. Even more interestingly, he and commenters on PrawfsBlawg muse about why I seem to be going so easy on Jack here. Except for the last 2 posts (at 4:44:13 & 1:01:37), it's an unusually perceptive exchange.
For those who have not seen my critique of Justice Scalia, Scalia's Infidelity: A Critique of Faint-Hearted Originalism, I just uploaded the published version here. Here is the abstract:
In this essay, based on the 2006 William Howard Taft lecture, I critically evaluate Justice Antonin Scalia's famous and influential 1988 Taft Lecture, entitled Originalism: The Lesser Evil. In his lecture, Justice Scalia began the now-widely-accepted shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text. At the same time, I explain how Justice Scalia allows himself three ways to escape originalist results that he finds to be objectionable: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and (3) (when the first two justifications are unavailing) just ignore originalism to avoid sufficiently objectionable results. While Justice Scalia describes his approach as faint-hearted originalism, I contend that he is not really an originalist at all as evidenced by this lecture and also by his stances as a justice in several important cases. This leaves Justice Thomas as the only justice who seems at all bound by originalist conclusions with which he may disagree. I then summarize why the courts ought to adhere to original public meaning originalism, why this form of originalism is preferable to the principal alternative - which I call the underlying principles approach - and why originalism, properly understood, does not lead to the types of grossly objectionable results that lead Justice Scalia to be faint of heart.