Constitutional Commentary, 2007
10 Pages Posted: 8 Feb 2007
This brief essay, written as part of a symposium on Jack Balkin's article on Abortion and Original Meaning, critiques Professor Balkin's conception of originalism. We argue that 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 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.
In this brief reply essay, we first argue that Balkin lacks a strong justification for following originalism of any kind. We also show that the best justification for originalism - that originalist interpretation is most likely to lead to good consequences - suggests that one should follow the principles of interpretation that a reasonable person at the time of the framing and ratification thought would be applied to the Constitution. Second, we briefly address the role of precedent in constitutional originalism. While Balkin suggests that reliance on precedent is a problematic move for originalists, we argue that the original meaning of the Constitution allows for the use of precedent.
Finally, we show that a reasonable person at the time of the Framing was more likely to have embraced interpretative principles that considered expected applications than Balkin's abstract originalist principles. People at the time of the enactment of the Constitution would have been unlikely to eschew expected applications because such applications can be extremely helpful in discerning the meaning of words. Risk averse citizens would be unlikely to adopt interpretative principles of the kind Balkin advocates, because such principles do not protect the nation against the effects of social movements that pursue undesirable policies.
Keywords: Constitutional Law, Jurisprudence
Suggested Citation: Suggested Citation
McGinnis, John O. and Rappaport, Michael B., Original Interpretative Principles as the Core of Originalism. San Diego Legal Studies Paper No. 07-82; Northwestern Public Law Research Paper No. 962142; Constitutional Commentary, 2007. Available at SSRN: https://ssrn.com/abstract=962142