I have read Yale law professor Jack Balkin’s 70-page paper titled “Abortion and Original Meaning” and his 103-page follow-on piece, “Original Meaning and Constitutional Redemption,” which largely responds to various academics who commented on the first piece. (A sidenote: In saying that I have read these pieces, I am certainly not claiming to have fully absorbed them. That would be an audacious claim for any reader to make, as the pieces cover quite a lot of territory. I also readily acknowledge that I read with greater care the parts of Balkin’s articles that I regard as bearing most directly on his central argument.)
I will use this post to summarize briefly, admittedly at a very high level, Balkin’s argument:
1. “Original meaning” needs to be distinguished from “original expected application”. A jurisprudence of original meaning is faithful to “the words of the text, understood in terms of their original meaning, and to the principles that underlie the text.” Original-meaning interpretation is therefore “not limited to those applications specifically intended or expected by the framers and adopters of the constitutional text.” Rather, the text of a constitutional provision is “judged by contemporary application of [the] concepts (and underlying principles) [that it embodies], not by how people living [at the time of ratification] would have applied those concepts and principles.”
Conservative originalists like Justice Scalia (Balkin’s argument goes) have instead adopted a jurisprudence of original expected application. Justice Scalia “insists that the concepts and principles underlying [constitutional text] must be applied in the same way that they would have been applied when they were adopted.” (Emphasis in original.)
2. The original meaning of the Fourteenth Amendment’s Equal Protection Clause is to prohibit class legislation, caste legislation, subordinating legislation, arbitrary and unreasonable distinctions, and special or partial laws.
3. Laws criminalizing abortion violate the original meaning of the Equal Protection Clause because they constitute class legislation and subordinating legislation. They “impose special burdens on women not suffered by men.” They “help maintain the unequal and subordinate status of women in society because they help commit women, against their will, to lives of domestic labor and economic dependency.”
As law professors John O. McGinnis and Michael B. Rappaport nicely put it in their brief critique of Balkin’s argument: Balkin “undertakes what many previously would have thought a conjuror’s trick: he attempts to locate the constitutional right to abortion, the poster child for imposition of the judiciary’s own idiosyncratic values, in the original meaning of the Constitution.… [His] article has great strategic value [for opponents of conservative originalists]: it attempts to appropriate for the living constitution philosophy the intellectual capital and public respectability that originalism has earned recently in the academy as well as the wider world.”
Like McGinnis and Rappaport, I believe that Balkin’s “conjuror’s trick” fails. Supplementing Matt’s views (here, as modified here), I will offer some comments on Balkin’s core argument in subsequent posts.