Originalism and the (Merely) Human Constitution

Abstract

This brief essay, written by invitation as a comment on an essay by Andrew Koppelman called “Why Jack Balkin is Disgusting,” argues that Koppelman reverses roles in suggesting that originalists are repelled by the idea of a merely human Constitution. In fact, it is non-originalists who have typically expressed disdain for a merely human Constitution. Conversely, in the interest of preserving the ability of humans to make constitutional law, originalism is dedicated to resisting efforts to transform the Constitution into something more transcendent. Despite getting the roles backwards, however, Koppelman is right to note that Jack Balkin’s attempt to dissolve the division between originalism and “living Constitutionalism” poses a threat to originalism. More specifically, Balkin and Koppelman underscore potential of the originalists’ too ready resort to “principles” to undermine the originalist enterprise. If originalism is to be a viable alternative, originalists must resist the temptation to interpret constitutional provisions as repositories of principles, and must instead develop the idea of constitutional provisions as expressing human or conventional categories.

Keywords: originalism, constitutional interpretation

JEL Classification: K10, K39