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Balkin on Abortion and Original Meaning—Part 2



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The starting point of Balkin’s argument is his distinction between “original meaning” and “original expected application”.  But his shorthand phrases obscure the actual divide between his approach and the conservative originalists he criticizes.

 

Scalia’s jurisprudence is not limited to “original expected application.”  As Balkin recognizes in a footnote, with respect to “new phenomena and new technologies” Scalia agrees that originalist interpretation is (to use Balkin’s phrase) “not limited to those applications specifically intended or expected by the framers and adopters of the constitutional text.”  I am not aware of anything that Scalia has written—and I don’t think that Balkin has identified anything—that suggests that Scalia looks only to specific intentions or expectations as to phenomena and technologies that existed at the time of the adoption of the relevant constitutional text.  It is true that Scalia rejects (in a passage quoted by Balkin) the notion that “the very acts that were perfectly constitutional in 1791 … may be unconstitutional today.”  (Emphasis in original.)  But that rejection is not tantamount to looking only to specific intentions or expectations. 

 

In a different footnote (in his second article), Balkin quotes (as “particularly worthy of note”) Gary Lawson’s argument that originalism “is a hypothetical inquiry that asks how a fully informed public audience, knowing all there is to know about the Constitution and the surrounding world, would understand a particular provision.”  Scalia may well differ from Lawson on the weight that “[a]ctual historical understandings” should have in this hypothetical inquiry, but it seems to me that Scalia’s focus on the objective public meaning of constitutional text reflects this same hypothetical inquiry. 

 

The real divide between Balkin’s approach and Scalia’s is which “fully informed public audience” should be looked to.  For Balkin, “each generation”—or at least each generation’s professors of constitutional law—interprets constitutional text anew.  (Balkin’s approach would seem more deserving of the label “transformable meaning” than “original meaning”.)  For Scalia, the hypothetical public audience consists of those people living when the text was adopted.  If Balkin, beyond invoking misplaced clichés like “the dead hand of the past,” presents a real argument against Scalia on this point, I missed it. 

 

As law professors John O. McGinnis and Michael B. Rappaport put it in their own brief commentary

 

Balkin presents a false dichotomy—either embrace abstract principles whose meaning is almost infinitely malleable or confine the Constitution to the applications the Framers imagined.  We believe there is [a] middle way that is also a better way.  In our view, the Constitution’s original meaning is informed by, but not exhausted by, its original expected applications.  In particular, the expected applications can be strong evidence of the original meaning.  Moreover, reasonable people at the time of the Framing likely embraced such principles of interpretation.

 

Balkin responds at length to various of the points made by McGinnis and Rappaport, but I don’t think that he refutes their charge that he has presented a false dichotomy, nor do I believe that he has adequately explored the role that original expected applications should have in original-meaning jurisprudence.


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