Bench Memos

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Balkin on Abortion and Original Meaning—Part 4


As its title suggests, Balkin’s ““Original Meaning and Constitutional Redemption” is in various places suffused with religious rhetoric.  Balkin presents his interpretive theory of “text and principle” as a “theory of redemptive constitutionalism” that addresses “the question of our faith in the constitutional system, which is also … a faith in its redemption through history.”  We must have “faith in the redeemability of the Constitution over time,” he tells one advocate of living constitutionalism.  In rather mystical language, Balkin presents the Constitution not just as “basic law” and “higher law” but as “our law”: 


“The Constitution is our law when we feel that it reflects our values sufficiently well that we can identify with it as ours; or, because we feel [we] have a say in what the Constitution means, we have faith that it could and will come to reflect our values better over time….  [T]he idea of constitution as our law … requires an identification between ourselves, those who lived in the past, and those who will live in the future.  And it requires faith that the Constitution is either good enough as it is to deserve our respect or that it eventually will redeemed.”


I find this religion of living constitutionalism puzzling.  Why must the Constitution be reinterpreted by each generation to reflect that generation’s own values?  Why isn’t it enough that the Constitution leaves broad play to each generation to enact its own values through the political processes?


Balkin maintains that living constitutionalism (including his theory of text and principle, which he maintains is simultaneously originalist and living constitutionalist) is needed to ensure that the Constitution “is more than the dead hand of the past” and “is a continuing project that each generation takes on.”  But this claim is doubly defective.  First, it ignores the broad play that the Constitution, properly understood, gives to the democratic processes to adapt policies to new conditions.  There was never, for example, any “dead hand of the past” that would have prevented legislative enactment of permissive abortion laws.  Second, insofar as it is used for its primary modern mission—the creation of new rights (rather than, say, the conferral on Congress of greater powers)—living constitutionalism entrenches the current generation’s policy preferences in Supreme Court decisionmaking in a manner that deprives future generations of the very adaptability that Balkin and other living constitutionalists say they favor.  In short, the “living Constitution” approach isn’t needed to deliver what it promises and it in fact delivers the opposite.


But in another respect Balkin’s embrace of the religion of living constitutionalism may be less puzzling, even if his own conscious intentions are (as I will assume) entirely innocent.  Who, after all, are the self-anointed high priests of this religion whose stature and power increase as it spreads?  Activist judges and constitutional theorists like Balkin, as it happens.  Whose power concomitantly diminishes?  The very citizens whose constitutional “perspective” Balkin’s theory supposedly makes “primary”.

Tags: Whelan


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