This is a dazzling book, written with verve, eloquence, and remarkable erudition, which certainly belongs in the pantheon of leading works in American constitutional theory. As a progressive, I'd love to accept Balkin's thesis--roughly, that we have a Constitution that is every liberal's dream. Unfortunately, I'm not persuaded by the argument.
Balkin--like Akhil Amar, Larry Solum, and other heavyweight liberal legal theorists--wants to reconcile originalism with progressive living constitutionalism. It finally dawned on liberals that old-fashioned living constitutionalism, which gives unelected judges the de facto power to update and amend the Constitution, doesn't play well in Peoria. So they decided to play lip service to original meaning while arguing for a broader theory of constitutional adjudication that supports Roe, Lawrence, and pretty much all liberal holdings of the past half century.
To do this, liberals like Balkin need to treat the "original meaning" of the constitution's vague, general, or abstract language as virtually empty shells into which they can pour whatever potent concoction they like. Key constitutional phrases such as "equal protection of the laws," "due process of law," "freedom of speech," "privileges or immunities," and "cruel or unusual punishments" are seen as expressing vague or abstract "standards" or "principles." As such, their meaning quickly "runs out." To apply the vague standards or abstract principles or to concretize them in legal doctrines, we need to engage in "construction," not "interpretation." And "construction," Balkin claims, invites all the traditional liberal tools of constitutional argument, including general purposes, textual structure, precedent, consequences, "national ethos," and "narrative understandings of the trajectory and meaning of national history" (p. 256). Construction, as Balkin sees it, involves making law, not applying or concretizing it. Judges, as well as political officials and citizens, can "make law" outside the normal constitutional procedures of bicameralism, presentment, and so forth. The result is that liberals can claim fidelity to original meaning while arguing for results that would have dumfounded or appalled members of the founding generation.
The fatal flaw in this is that Balkin and his friends have no serious argument that the original meaning of "equal protection," "freedom of speech," and other extensively litigated constitutional provisions was highly abstract or general.
Their argument--such as it is--is simply to appeal to the language and the presumed intentions of wise constitutional designers. The words are general and vague, so the intended meaning must have been general and vague. Surely the adopters must have wanted to "delegate" later generations with the task of giving concrete meaning to the Constitution's vague words. Why else would they have spoken in such "majestic generalities?" Isn't the very purpose of a constitution to construct an open-ended framework of government--to enable (as well as channel) future political judgment?
This argument founders on the well-documented facts that (1) lawmakers in the founding period often used broad, general language, knowing full well that the language would be understood more restrictively than a literal reading of the words would suggest (a familiar interpretive technique known as "restrictive equitable interpretation"), (2) the founding generation was strongly opposed to judicial policymaking or discretion as a matter of principle, (3) examination of the "expected applications" of constitutional language nearly always indicates that the original understanding was narrower than the words alone suggest; and (4) there are virtually NO explicit declarations among the adopters or later constitutional commentators (e.g., Joseph Story) that the meaning of constitutional language was as abstract and capacious as liberals like Balkin claim.
Another way to get at the essential weakness of Balkin's argument is to ask what evidence we have that the adopters actually agreed on a particular constitutional "framework" or "plan of governance" in Balkin's sense of these terms. Balkin claims that to respect the adopters' plan of governance contemporary interpreters need to determine, with respect to each constitutional provision, whether the adopters intended that provision to state a bright-line "rule" (clear applications and conclusively binding), a vague "standard" (conclusively binding but some debatable applications), or an abstract "principle" (not conclusively binding and lots of debatable applications). But how likely is it that the adopters actually agreed on such matters? Even if they had the concept of Balkin's rule/standard/principle trichotomy (which they didn't), how likely is it that they would have concurred on the amount of "delegation" or "discretion" they were leaving for future generations of interpreters?
There is a further downside to Balkin's living originalism: as Stephen D. Smith has recently noted, it "scholasticizes" constitutional theory. Old-style originalists could look to the framers' discoverable expected applications of constitutional language and be pretty sure they knew what they were talking about and could back it up. Balkin-style originalists need not only to delve deeply into constitutional history; they also need to be experts on 18th-century word-usage and contemporary philosophy of language and linguistics. Balkinists need to look specifically for "semantic meaning" ("meaning" being one of the slipperiest words in the English language), distinguish "semantic intentions" from various non-binding types of intentions (broad purposes, expected applications, hoped-for applications, interpretive intentions, etc.), distinguish "abstract" from "concrete" intentions and determine which was dominant, etc. In fact, Balkin's form of originalism not only scholasticizes constitutional theory; it transforms it into a kind of unverifiable metaphysics. Why? Because the linch-pin of Balkin's progressive originalism--the claim that the adopters chose broad, open-ended language because they wanted to enact abstract moral principles that future generations were "delegated" to fill up with concrete meaning--is an unsinkable rubber duck. No amount of historical evidence could verify it or falsify it. It is a sheer metaphysical postulate intended to motivate a particular brand of liberal constitutional theory and insulate it from potentially disconfirming historical evidence.
As I see it, the hasty marriage of originalism and living constitutionalism could do with a quick annulment. It's embarrassing for liberals to pretend that they're something they're not. Our nation has moved beyond original meaning, and we are a juster, stronger, more united people as a result. That is where the fight against constitutional conservatism should be waged, not on the shaky and disingenuous ground of some ersatz originalism.
