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Originalism and its Discontents (Plus a Thought Or Two About Abortion)

22 Pages Posted: 17 Jan 2007 Last revised: 10 Mar 2008

Mitchell N. Berman

University of Pennsylvania Law School

Date Written: March 5, 2008

Abstract

In Abortion and Original Meaning, Jack Balkin presents a new argument, based on his reconstruction of the principles that animated the Fourteenth Amendment, for the soundness of the result, though not the reasoning, of Roe v. Wade. That argument, however, serves the larger purpose of demonstrating why the debate between originalism and living constitutionalism rests on a false dichotomy. Once we reject the assumption that fidelity to the [constitutional] text means fidelity to original expected application, Balkin contends, we ought instead to agree that constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. In maintaining such fidelity, moreover, [e]ach generation makes the Constitution their Constitution by calling upon its text and its principles and arguing about what they mean in their own time. It follows, Balkin claims, that [t]he choice between original meaning and living constitutionalism ... is a false choice. This short reply essay, to appear in a symposium devoted to Balkin's article, argues that Balkin mischaracterizes contemporary originalism and that his false choice claim cannot be maintained.

Although Balkin is not alone in asserting that originalists believe that courts ought to be faithful to the originally expected applications of the constitutional text, almost no contemporary originalist theorist takes that view, and many have categorically rejected it. More important, though, is what follows once we all reject expectation originalism. Balkin's conclusion that originalism and non-originalism present a false choice rests squarely on his contention that fidelity to the Constitution requires fidelity to its original meaning and precludes contemporary interpreters from interpreting its text in accordance with other principles that the text can bear. Of course, it is precisely this claim that non-originalists deny. Yet Balkin presents precious little argument to support it, and nothing adequate to convince non-originalists that what they see as a true choice is in fact a false one. Not only is Balkin's proposed originalist method surprisingly undefended, but it seems inconsistent with his appreciation of the way that extra-judicial actors - especially social movements - shape constitutional meaning. Ironically, that understanding strongly suggests (though it does not entail) that the non-originalists have the better view of judicial constitutional interpretation.

In short, this brief essay argues that, despite much in his article that is fresh and interesting, Balkin's empirical claim about the state of originalist argumentation rings false and his normative or conceptual claims about constitutional interpretation fail to persuade. The essay concludes by offering a few thoughts as well about the problem of abortion.

Keywords: Originalism, Nonoriginalism, Non-originalism, Living Constitutionalism, Abortion

Suggested Citation

Berman, Mitchell N., Originalism and its Discontents (Plus a Thought Or Two About Abortion) (March 5, 2008). U of Texas Law, Public Law Research Paper No. 117. Available at SSRN: https://ssrn.com/abstract=957630 or http://dx.doi.org/10.2139/ssrn.957630

Mitchell N. Berman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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