Forthcoming in _ JERUSALEM REV. LEG. STUD. _ (2013).
“Foundational” Originalism? On Jack Balkin’s “Living Originalism”
Barak Medina
*
1. Balkin’s Theory
Jack Balkin’s Living Originalism1 offers a theory of constitutional interpretation. As
the book’s title tells, it aims at integrating the two leading competing theories of
constitutional interpretation, “living constitutionalism” and ”originalism.” The book
offers a rich theory, which is both descriptive and normative, about constitutional
construction and the role of constitutions in social change. The result is a book which
is a must read for every scholar who is interested in constitutionalism. It is not
surprising that in the year following the book’s publication it was already the subject
of almost thirty(!) scholarly reviews.2
As I understand it, Balkin’s main idea, which he terms as “framework
originalism,”3 is this: In determining the meaning of a certain Constitutional provision
we must start by identifying the purpose of “constitutionalizing” this provision. This
idea may bring to mind Chief Justice Marshall’s famous statement about
constitutional interpretation: “We must never forget that it is a constitution we are
expounding.”4 In fact, however, Balkin’s thesis aims at revising the underlying
premise of this statement.
The implicit assumption in Marshall’s position is that a constitution, as such, has
some specific aim. There is, of course, a strong disagreement about what this aim
exactly is (among the prevailing approaches: the aim is to limit the powers of
government, to “rulify” morality, to set a “focal point” for political discourse, to
entrench a national compromise, and more). Arguably, the aim of adopting a
constitution compels employing a certain theory of interpretation (schematically,
originalism or a living constitutionalism). It is thus not surprising that the debate
among advocates of the competing theories of interpretation is, at its heart, a dispute
about the aim of the constitutionalization of the provisions that are to be interpreted.
But these competing approaches share the idea that identifying this aim is not, in
itself, a matter of constitutional interpretation. Rather, it is a matter of considerations
about sociological and normative “legitimacy,” axiomatic ideals about the “essence”
of a constitution, consequentialist arguments, and so forth. Importantly, this metaconstitutional process is distinctively non-originalist, as it is not based on the specific
constitutional text or other facts about intentions or reasonable expectations at the
time of drafting and adopting the Constitution. Indeed, the implicit theme is that “we
*
Lawrence D. Biele Associate Professor of Law, Faculty of Law, the Hebrew University of Jerusalem.
I thank Alon Harel and Shay Levi for their insightful comments. Barak.medina@mail.huji.ac.il.
1
JACK M. BALKIN, LIVING ORIGINALISM (2011).
2
The book (and an earlier article which presented its basic ideas) is the subject of several review
articles, as well as at least four academic symposia. See 24 CONST. COMMENT. 291-532 (2007); 2012
U. ILL. L. REV. 611-877; 92 B.U.L. REV. 1127-1306 (2012); and this issue of the JERUSALEM REV. LEG.
STUD. Balkin’s companion book (infra note 23) was discussed in 71 MD. L. REV. 953-1172 (2012).
3
BALKIN, supra note 1, at 21-23.
4
McCulloch v. Maryland. 17 U.S. 316. 407 (1819) (emphasis added).
2
must never forget that we are expounding” a constitution, not the Constitution.5 It is
this premise about the essential, non-originalist character of the aim of the
Constitution which Balkin’s theory contests.
Balkin suggests that the “framework” of the Constitution, and in fact the
framework of each of its provisions, is a matter of interpretation. The act of
constitutionalizing certain norms may have distinctively different purposes. In
particular, while in some cases it may aim at limiting future decision-makers’
discretion, in others the purpose is to set up a framework for future generations’
constitutional construction, or, in Balkin’s words, to charge “each generation… with
the obligation to flesh out and implement text and principles in their own time.”6
Balkin argues that the primer source for identifying the “original meaning” of the
constitutional framework is the type of text chosen for the relevant norms.
Specifically, the relevant distinction is between the use of rules as opposed to the use
of standards or principles: “Adopters use fixed rules because they want to limit
discretion; and standards or principles because they want to channel politics through
certain key concepts but delegate the details to future generations.”7 It is the second
type of norms, those that should be “constructed” according to their current
understanding, which is at the heart of Balkin’s book.8
To a great extent, Balkin’s is thus a theory of living constitutionalism,9 which
offers an originalist justification for employing this theory—it is the Constitution’s
original character that justifies interpreting it (or “constructing” it) according to living
constitutionalism. I agree with substantial parts of Balkin’s approach about the
preferred theory of interpretation.10 My critique refers mostly to the book’s
“originalist” elements. I offer three main comments, that address different aspects of
an idea which is central to Balkin’s theory—the concept of “procedural legitimacy.”
In a nut shell, Balkin justifies “framework originalism” by referring to “the fact
that [the Constitutional text] was created through successive acts of popular
sovereignty.”11 The interpretation theory chosen by the framers and adopters of the
5
Following common usage, I use the capital-c “Constitution” to denote a specific legal institution (e.g.,
the U.S. Constitution), and a lowercase-c “constitution” to refer to this generic institution.
6
BALKIN, supra note 1, at 3.
7
Id., at 6-7.
8
Balkin is not the first to point at the distinction between provisions that authorize interpreters to work
out a changing meaning over time, and those that prescribe a fixed meaning. See, for instance, JOHN
HART ELY, DEMOCRACY AND DISTRUST 1 (1980) (“More often the Constitution proceeds by briefly
indicating certain fundamental principles whose specific implications for each age must be determined
in contemporary context.”). See also David A. Strauss, Can Originalism Be Saved?, 92 B.U.L. REV.
1161, 1167 (2012).
9
I agree with James Fleming’s observation that Balkin’s living originalism would pass the ultimate test
of verifying whether a theory represents living constitutionalism: If the American People would have
ratified today a Constitution whose text is identical to the current U.S. Constitutional, Balkin would
offer giving the text exactly the same meaning as he does without such ratification. James E. Fleming,
The Balkinization of Originalism, 2012 U. ILL. L. REV. 669, 682.
10
Balkin presents an argument in favor of a certain type of living constitutionalism, one which is
closely related to “popular constitutionalism.” It is a theory of interpretation by citizens as the standard
case. Accordingly, Balkin opposes the principle of judicial supremacy (but accepts judicial review),
arguing that courts have neither the first nor the last word on the practical meaning of the Constitution.
BALKIN, supra note 1, at 68. These are important, and very interesting elements of Balkin’s theory, but
due to space limits, I will not be able to discuss them here.
11
Id., at 55.
3
text is binding since it was approved by the People. My first comment suggests that
“procedural legitimacy” cannot serve as an exclusive justification for the binding
power of the Constitution. I then question Balkin’s claim that procedural legitimacy
can justify the constitutional framework that he envisions. The third and related
argument refers to the implementation of Balkin’s “framework originalism.” I suggest
that additional elements of original character should be considered in establishing the
Constitutional framework. The ultimate result of my analysis is that Balkin’s book
provides a convincing argument in favor of (a certain version of) living
constitutionalism, but it is an argument which is based on originalism only as a
complimentary but not as the central basis. Balkin’s theory is based in fact on moral
and sociological legitimacy, what he calls the property of the Constitution as “our
law.”
In what follows, I start by briefly addressing the debate about the proper
classification of Balkin’s theory and offer to consider it as “foundational” originalism
(Section 2). I then move to discuss my three substantial comments: “procedural
legitimacy” cannot serve as an exclusive justification for the binding power of the
Constitution (Section 3), procedural legitimacy does not justify Balkin’s “framework
originalism” (Section 4), and the way Balkin implement his “framework originalism”
is too narrow (Section 5). I conclude with comments on some implications of Balkin’s
theory to the current Constitutional debate in Israel (Section 6).
2. Classification: Is Balkin’s Theory Originalist or Living Constitutionalist?
A distinctive aspect of the reactions to the book is the disagreement among
commentators about the appropriate classification of Balkin’s theory. Balkin is a
prominent “living originalist,” who endorses liberal or progressive constitutional
principles. Some scholars suggest that in this book Balkin has in fact “converted” to
the originalist camp. Most notably, Randy Barnet described the book as “a serious
explication and defense of original public meaning originalism.”12 He even concluded
his contribution to this issue of the Jerusalem Review of Legal Studies with a glee: “I
welcome [Balkin] to the growing club of new originalists.”13 David Lyons,14 Gary
Lawson,15 and Ethan Leib16 expressed similar, although more nuanced positions. In
contrast, others addressed the book as following the path of “living
constitutionalism.” For instance, David Strauss wrote that he is not sure “there is any
deep inconsistency between Balkin’s ‘constitutional construction’ and a common-lawlike approach to the Constitution, which I believe to be the most plausible form of
living constitutionalism.”17 Similar views were presented by James Fleming,18 Hugh
12
Randy E. Barnett, Jack Balkin's Interaction Theory of “Commerce”, 2102 U. ILL. L. REV. 623, 625
(2012).
13
Randy E. Barnett, Welcome to the New Originalism, _ JERUSALEM REV. LEG. STUD. _ (2013).
14
David Lyons, Constitutional Principles, 92 B.U.L. REV. 1237 (2012).
15
Gary Lawson, Dead Document Walking, 92 B.U.L. REV. 1225 (2012).
16
Ethan J. Leib, The Perpetual Anxiety of Living Constitutionalism, 24 CONST. COMMENT. 353, 355
(2007).
17
Strauss, supra note 6, at 1166. Strauss added that “much of the book consists of learned and elegant
arguments about issues in constitutional law that draw on all the various sources that inform
‘constitutional construction’ …[b]ut at this point, originalism seems to have left the stage:
constitutional construction is just a form of living constitutionalism.” Id. at 1166. See also Martin H.
Redish & Matthew B. Arnould, Judicial Review, Constitutional Interpretation, and the Democratic
Dilemma: Proposing a ‘Controlled Activism’ Alternative, 64 FLA. L. REV. 1485, 1509 (2012).
4
Baxter,19 Michael Dorf,20 and Larry Alexander.21 Larry Solum suggested that Balkin’s
theory is in fact “a middle ground” between the two approaches.22
Balkin himself, most expressly in his book Constitutional Redemption, the
companion volume to Living Originalism, chose to classify his position as
originalism.23 He even devoted chapter 8 of that book to the question “How I Became
an Originalist.” Balkin argues there that he is not engaging in adopting a label used by
his political opponents (as originalism is typically identified with the conservative
ideology). In Balkin’s view, the text of the U.S. Constitution stands as a focal point
for settling otherwise fractious questions, and as a “potent symbol” of popular
sovereignty.24 It is this commitment to the idea of taking the text seriously that puts
his theory, so argues Balkin, in the originalist camp.
Who is right then? One answer is that the definition of “originalism” is simply too
vague.25 Originalism is a family of views which suggests that the meaning given to
the Constitutional text in the past, namely when the text was framed and adopted
(including, but not exclusively, intentions, expected application and expected
meaning), is relevant or even decisive in interpreting the Constitution. But all
reasonable theories of constitutional interpretation do not ignore the (linguistic
meaning of the) Constitutional text and other aspects of its original character. Thus, as
long as “originalism” means giving at least some (non-trivial) weight to facts from the
period in which the Constitution was drafted and approved, “we are all originalists.”26
However, the term originalism is often characterized in a narrower way, in which
the data from the past get lexical priority over other sources of identifying the
meaning of the provisions of the Constitution.27 The idea is that the (linguistic)
meaning of the text is fixed when that provision is framed and ratified, and that
meaning, which is to be recovered by referring to the text’s “original meaning” is
binding.28 Subject to the difficulties in determining whether there is indeed a “purely”
18
James E. Fleming, Living Originalism and Living Constitutionalism as Moral Readings of the
American Constitution, 92 B.U.L. REV. 1171 (2012); Fleming, supra note 9, at 673.
19
Hugh Baxter, Why the “Originalism” in Balkin’s Living Originalism?, 92 B.U.L. REV. 1213 (2012).
20
Michael C. Dorf, The Undead Constitution, 125 HARV. L. REV. 2011 (2012).
21
Larry Alexander The Method of Text and ?: Jack Balkin’s Originalism with no Regrets, 2012 U. Ill.
L. REV. 611.
22
Lawrence B. Solum, Construction and Constraint, _ JERUSALEM REV. LEG. STUD. _ (2013).
23
JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD 226-50
(2011).
24
Id. at 237.
25
Mitchell Berman has identified seventy-two (!) varieties of originalism. Mitchell N. Berman,
Originalism is Bunk, 84 N.Y.U. L. REV. 1, 14-15 (2009). However, Berman rejects the notion that
originalism is too ambiguous to capture a subject of genuine debate. See also Fleming, supra note 9, at
670 (arguing that “we are witnessing the ‘Balkanization’ of originalism (when originalism splits into
warring camps.)”).
26
Randy E. Barnett, Underlying Principles, 24 CONST. COMMENT. 405 (2007); James E. Ryan, Laying
Claim To The Constitution: The Promise Of New Textualism, 97 VA. L. REV. 1523 (2011).
27
28
See, e.g., Berman, supra note 25, at 10-12.
According to Larry Solum, originalism claims that: (1) the (linguistic) meaning of each provision of
the Constitution becomes fixed when that provision is framed and ratified; (2) sound interpretation of
the Constitution requires recovery of its original public meaning; and (3) original public meaning has
the force of law, such that courts and officials are bound by the text of the Constitution. Lawrence B.
5
originalist aspect in Balkin’s theory, an issue on which I elaborate below, I think that
Balkin does aim at offering an originalist argument of a special type.
In its more common usage, for instance the one endorsed by Justice Scalia,29 or
Randy Barnett,30 originalism is a theory of constitutional interpretation, giving
meaning to substantial provisions in the Constitution. As indicated, as a general
matter, originalists support this position not on the basis of originalist-based
arguments about the way the Constitution should be interpreted, but based on some
substantive arguments about the appropriate theory of interpretation. In contrast,
Balkin calls for employing (a certain form of) “originalism” for the purpose of
choosing the method in which the Constitutional provisions are to be interpreted.
Using an (admittedly only partially suitable) analogy from normative ethics,31 we may
distinguish between “factoral” originalism and “foundational” originalism. A factoral
moral theory defines the factors that determine the morality of an act, and their
relative weight. In analogy, a factoral theory of interpretation determines the sources
that should be used in giving meaning to a given legal text. It is; however, the role of
foundational theories to explain and justify the relevance of the various factors and
their interaction. Balkin’s approach takes originalism as a foundational theory of
interpretation.
Balkin’s claim is that the result of “foundational” originalism is that central
elements of the U.S. Constitution should be interpreted (or “constructed”) according
to a distinctively non-originalist “facotral” theory. Balkin argues that the
“interpretation” of the Constitution (i.e., the process of identifying the text’s linguistic
meaning) must be based on the words’ strict “semantic meaning,” and cannot be
changed over time, except by formal amendment; but then adds that the
“construction” of the text (i.e., determining its legal effect and applying it to concrete
cases) should be subject by later generations, so as to better reflect contemporary
values. The original meaning of the Constitution is not that of a “finished produce,
subject to only Article V amendments;” rather, it is understood as an “initial
framework for governance that sets policies in motion and must be filled out over
time through constitutional construction.”32
3. Foundational Originalism and Democratic Legitimacy
Balkin’s approach, that we should pay careful attention to the reasons why
constitutional designers chose particular kinds of language, and employ a theory of
interpretation and constitutional construction accordingly, may prove to be a doubleedged sword from the perspective of the living constitutionalism camp. As far as its
rhetoric is concerned, it might unintentionally induce judges to employ originalism,
disregarding the fine distinction between the use of originalism in identifying the
Constitutional framework and its use as an interpretation theory.33 Moreover, Balkin’s
Solum, We are All Originalists Now, in ROBERT W. BENNETT & LAWRENCE B. SOLUM,
CONSTITUTIONAL ORIGINALISM: A DEBATE 1, 3-4 (2011).
29
Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal
Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS
AND THE LAW 17 (Amy Gutmann ed., 1997).
30
RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004).
31
Shelly Kagan, The Structure of Normative Ethics, 6 PHIL. PERSPECTIVES 223, 224–36 (1992).
32
BALKIN, supra note 1, at 21.
33
For a related argument see Dorf, supra note 20, at 2014.
6
justification of living constitutionalism can work only as long as it can be reasonably
inferred from the text and the original characteristics of the Constitutional framework.
If the reasonable interpretation of the text results in the conclusion that its aim,
according to the public original meaning, was to limit future generations’ discretion,
Balkin’s “foundational” originalism might undermine the legitimacy of living
constitutionalism.
But the more general question is, why (if at all) is the drafters’ purpose in
choosing between the two constitutional frameworks (or the “original public
meaning” of this choice) normatively relevant? For that matter, would an explicit
“interpretation clause” in the Constitution, if there were one,34 have been binding just
as the text of substantive clauses do?
Balkin does not directly address the dilemma should the “author” of a legal norm
be empowered to bind interpreters in choosing what interpretation theory will be
employed in giving meaning to the text. Originalists and living constitutionalists alike
may well argue that the choice of theory of interpretation should not be resolved
according to originalist considerations. This position seems to be prominent in other
contexts of legal interpretation. For instance, the power of parties to a contract to
determine what theory of interpretation courts should employ in giving meaning to
their contractual obligations is limited.35 The same is true with respect to the power of
the legislature to dictate the method that will be used in interpreting a certain statute
(or in interpreting legislation in general). A theory of interpretation determines the
binding power of the author of the text. Schematically, the more weight is given to
originalist elements in giving meaning to the text, the more power is given to the
author/adopter of the text. It is conventionally assumed, on the basis of good
substantive considerations, that the legislature is not authorized to determine its own
powers. The legislature’s powers, including the choice of the appropriate method on
interpretation, are a matter to be determined by the Constitution.
Balkin may be read as suggesting that we should recognize the authority of the
Constitutional text to determine the scope of its own binding power. He suggests that
this power results from the recognition of the Constitution as “law,” and from “the
fact that it was created through successive acts of popular sovereignty.”36 It is in fact
an argument for giving the text a decisive power on the basis of “procedural
legitimacy.” Given that it is the People that adopted the Constitution, the framers
enjoy limitless powers, including the authority to determine how far to limit the
discretion of future generations, and thus also to choose the method of interpretation
of the Constitution that will govern its future enforcers.37
34
An example of such a clause is Section 39(1) of the Constitution of the Republic of South Africa,
1996: “When interpreting the Bill of Rights, a court, tribunal or forum: (a) must promote the values that
underlie an open and democratic society based on human dignity, equality and freedom; (b) must
consider international law; and (c) may consider foreign law.”
35
See, e.g., Alan Schwartz & Robert E. Scott, Contract Interpretation Redux, 119 YALE L.J. 926, 939
(2010) (“[T]he [interpretive] rules are mandatory in the sense that parties cannot contract directly for
textualist or contextualist interpretive rules.”).
36
37
BALKIN, supra note 1, at 55.
A similar result is reached on the basis of the positivist idea that a “constitutional assembly” enjoys,
by definition, limitless powers. See, e.g., CLAUDE KLEIN, THÉORIE ET PRATIQUE DU POUVOIR
CONSTITUENT (1996).
7
I doubt, however, not only whether this position is justified (I think it isn’t) but
also whether Balkin in fact endorses it. The normative justification for the binding
power of the Constitution, and thus also that of its choices about the framework of
“constitutional construction,” is based on three related elements. Procedural
legitimacy is indeed one of them: the Constitutional text is binding as long as it was
adopted in a “legitimate” process. But we must also take into account two additional
types of considerations. One is moral justifications (in terms of both normative ethics
and political philosophy) of the relevant constitutional interpretation theory. The other
is the acceptance of the relevant framework of constitutional interpretation and
construction by the current generation and the fact that it both reflects and
accommodates the current generation’s values. The reference to all three sources is
what generates the “democratic legitimacy” of the binding power of the Constitution
in general, and of its “original framework” in particular.
Balkin explicitly incorporates these two non-procedural sources of democratic
legitimacy. In chapter 4 of the book Balkin argues that the Constitutional
interpretation theory should be constructed in a way that will ensure that all people
take part in the interpretation project.38 Similarly, Balkin’s elaborated discussion of
the practice of constitutional change and transformation in the U.S. is aimed not only
for descriptive purposes but to suggest that the framework of constitutional
construction also enjoys sociological legitimacy.39 In his response to critique Balkin
acknowledges that in fact the basis of his position to “ascribe” to the text the specific
meaning of the use of principles is the distinctively non-original (and thus nonprocedural) elements of democratic legitimacy:
“My account of original meaning assumes that adopters recognize that
a great deal will have to be worked out through construction and that their
choice of rules, standards, and principles is deliberate. It ascribes this
understanding and these purposes to the adopters. They are creating a
constitution not only for their time, but for a later time they cannot know
much about. …The democratic legitimacy of the Constitution …arises
from the processes of constitutional construction over time. Constitutions
cannot maintain their democratic legitimacy without contributions from
multiple generations.”40
Balkin does not tell us what should be the outcome when the preferred theory of
interpretation according to these non-original elements of democratic legitimacy,
living constitutionalism, is not supported by the Constitutional text, and thus cannot
gain the assumed procedural legitimacy. He implicitly assumes away this possibility
by arguing that “framework originalism,” the “fidelity to the basic framework” chosen
by the framers of the Constitution, “allows each generation to do its part in making
38
BALKIN, supra note 1, at 62: “A Constitutional theory that distrusts all delegation to the future fails
as ‘our law’ … A Constitution is our law when we feel that we have a stake in it.”
39
Id., at 81-97. Balkin questions there the influential theory of Bruce Ackerman about constitutional
change outside the formal procedures of Article V, in what Ackerman describes as “Constitutional
moments,” in which people rediscover the Constitution.
40
Jack M. Balkin, Nine Perspectives on Living Originalism, 2012 U. Ill. L. Rev. 815, 830 (emphasis
added). Balkin adds there that “the democratic legitimacy of the Constitution is not established at the
moment of adoption. Rather, it derives from multiple sources. The first source of democratic legitimacy
is the act of adoption or amendment. The second arises from the processes of constitutional
construction over time. Constitutions cannot maintain their democratic legitimacy without
contributions from multiple generations.” (id).
8
the Constitution its own Constitution.”41 However, as Jeffrey Goldsworthy noted, this
assumption of perfect alignment between the text and the requirement of legitimacy
through contributions from multiple generations may well be “too good to be true.”42
Indeed, Balkin himself recognizes that in certain contexts the original framework does
not allow for such an on-going public participation, since it uses “rules.” It is not clear
how, according to Balkin, these parts of the Constitution establish their democratic
legitimacy. A theory of framework originalism must determine the priority (or at least
the relative “weight”) of the different sources of legitimacy, as it should apply
regardless of one’s position about moral democratic legitimacy. For instance, if it
were a general theory of framework originalism it should also address the case in
which it is assumed, like Larry Alexander does, that moral considerations refute the
use of “principles” as a Constitutional framework.43
As indicated, while in some places in the book Balkin seems to suggest that the
“originalist framework” is decisive,44 it is hardly compatible with Balkin’s own
position.45 To my view, there is no good reason to recognize the authority of the text,
i.e. the power of the framers and adopters of the Constitution, to determine the
method of interpretation regardless of moral and sociological considerations. The
study of the text is clearly relevant, as in appropriate instances it serves for
legitimizing the conclusions of the non-originalist analysis. But I did not find in
Balkin’s book a convincing argument for giving the text (or its original public
meaning) lexical priority. The opposite is true. Balkin’s detailed account of the moral
and sociological considerations, along with other scholarship endorsing living
constitutionalism,46 suggest that when in conflict, these are the considerations that
should prevail.
Balkin’s project aims at demonstrating that the framework that provides the
Constitution its moral and sociological democratic legitimacy, namely living
constitutionalism, is reasonably reflected in the choices of the drafters and adopters of
the US Constitution. Their choice is morally meaningful since “it is a constitution we
are expounding,” but it holds only subject to the moral considerations supporting the
specific choice. But Balkin’s theory does not support foundational originalism of the
type which assigns lexical priority to original considerations as the factoral theory of
interpretation.
4. Foundational Originalism and Procedural Legitimacy
According to the originalists’ critique, living constitutionalism is flawed since it does
not take the text (and other original characters) of the Constitution seriously, and thus
deprives the Constitution of its procedural legitimacy. Balkin seems to endorse this
position in his critical discussion of the non-originalist-based living constitutionalism,
such as the one endorsed by David Strauss. Balkin presents the latter approach as one
41
Id., id.
42
Jeffrey Goldsworthy, Constitutional Cultures, Democracy, and Unwritten Principles, 2012 U. Ill. L.
Rev. 683, 691-93.
43
See, e.g., Alexander, supra note 21.
44
For instance: “The initial authority of the text comes from the fact that it was created through
successive acts of popular sovereignty, and the text continues in force today because it is law.”
BALKIN, supra note 1, at 55.
45
See, e.g., id., at 66.
46
See, e.g., DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010).
9
which “denies that the text is an authoritative command or political decision made in
the past to which we owe duty of fidelity or obedience. The text merely serves as a
focal point for political activity…”.47 According to Balkin, the problem with this
approach results from its deficit in procedural legitimacy: “[Strauss’ approach] offers
no obvious connection between the law Americans live under and popular
sovereignty. …The text could be any text produced by anyone.”48
Balkin claims that his framework originalism solves this difficulty, as it justifies
living constitutionalism in a way that “directly connects the reason why we follow the
text as our law to past exercises of popular sovereignty.”49 Promulgating this idea,
which is discussed in the book quite at length, is probably one of the central aims of
the book. I am doubtful, however, whether this reply to the originalists’ critique is
fully successful.
Recall that Balkin’s argument that his version of living constitutionalism enjoys
procedural legitimacy is based on his assertion that the Constitutional text that the
People adopted is one which “very often use[s] open-ended language that deliberately
delegates questions of application to future interpreters.”50 If Balkin is right in this
characterization of the Constitutional framework, it means that his theory of
constitutional construction satisfies a formal, “thin” version of procedural legitimacy.
Balkin’s assertion that the People decided that “it is better to adopt language that
shape the future discourse of debates about rights without trying to fully determine
everything in advance”51 is a successful response to the claim that future generations’
constitutional construction violates popular sovereignty.
However, if the act of adopting the Constitution, this process of exercising
popular sovereignty, has merely delegated power to determining the required social
choices, it fails to satisfy a “thick” notion of the requirement of procedural legitimacy.
A “thick” notion of procedural legitimacy closely resembles the rationale of the
Congressional “Non-Delegation” doctrine. A decision of the legislature to delegate
legislative powers to another agency, while formally a legislative “decision,” fails to
fulfill the aims of requiring the legislature to make the substantial choices and set the
required policies.52 As stated by Chief Justice Rhenquist, “...Congress [should] lay
down the general policy and standards that animate the law, leaving the agency to
refine those standards, ‘fill the blanks’ or apply the standards to particular cases.”53 In
47
BALKIN, supra note 1, at 50.
48
Id., at 54. This position resembles the theory that used to be (pejoratively) termed as
“noninterpretivism” (as opposed to “interpretivism”).
49
Id., id.
50
Id., at 27.
51
Id., at 31.
52
The classical statement of this view was promulgated by John Locke: “[The legislative power], being
derived from the People by a positive voluntary Grant and Institution, can be no other than what that
positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative
can have no power to transfer their Authority of making Laws, and place it in other hands”. John
Locke, The Second Treatise of Government, in TWO TREATISES OF GOVERNMENT 265, § 141 at 363
(1988, Peter Laslett, ed.). See also Larry Alexander & Saikrishna Prakash, Reports of the
Nondelegation Doctrine's Death Are Greatly Exaggerated, 70 U. CHI. L. REV. 1297, 1299-1300 (2003).
For a different view see Eric A. Posner and Adrian Vermeule, Interring the Nondelegation Doctrine,
69 U. CHI. L. REV. 1721 (2002).
53
Industrial Union Dept. v. American Petrol. Inst. 448 U.S. 607, 675 (1980).
01
Edmund Burke’s words, the representatives owe us not only their industry but mostly
their “judgment.”54 The analogy to the current discussion does not carry on to the
consequences of violating this doctrine, as I agree that the framers and adopters of the
Constitution may delegate powers to others. My claim is that a decision to “frame”
the Constitution as a text that, in Balkin’s words, “may not do much more than
provide a constitutional grammar and vocabulary, a set of basic principles and textual
commitments, and a practice of constitutional argument,”55 is insufficient to gain it
procedural legitimacy. Such a constitution does not reflect substantial moral choices
of the People.56
For a constitution to gain procedural legitimacy it is insufficient that the “process”
of its adoption fulfills certain properties of form (e.g., that it was adopted in a
“constitutional moment,” “behind a veil of ignorance,” by a qualified majority, etc.).57
It is also required to fulfill some properties of substance, which includes resolving
policy issues, “rulifying” morality (possibly by forming “standards”),58 and so forth.
Therefore, the binding status of the Constitution, if its content is the one envisioned
by Balkin, cannot be based on the idea of procedural legitimacy. It must resort to
other elements of democratic legitimacy.
5. Implementing “Framework Originalism:” Text and Context
As indicated, Balkin’s theory focuses almost exclusively on one type of originalist
consideration—the choice between rules and standards and principles in the
Constitutional text. According to Balkin, the Constitutional text reflects a choice
between two main approaches: Setting rules, which do not leave much room for future
generations to interpret or construct; and standards and principles, which delegate
much power to future generations.
While I’m sympathetic to Balkin’s call for an originalist inquiry of the
constitutional framework, I find his decision to focus almost exclusively on the choice
between rules and principles questionable. One difficulty is that the distinction
between rules and principles is insufficient to establish the “public original meaning”
of the Constitutional framework. First, it is hardly self-evident to what type a certain
provision belongs. Relatedly, constitutional provisions should not be interpreted in
isolation from other norms, or from the underlying moral theory of the Constitution.59
Identifying the original “framework” often requires addressing more than one
provision in the Constitution, and when the set of relevant provisions consists of
norms of both types, Balkin’s focus on the text may well be insufficient to identify the
correct original choices. For instance, it can hardly be justified to ignore aspects such
as the inclusion (or omission) of provisions such as an “override clause” in the
Constitution, a “limitation clause,” which authorizes the legislature to infringe
54
Edmund Burke, Speech to the Electors of Bristol, in THE WORKS OF THE RIGHT HONORABLE
EDMUND BURKE 2, 10 (1826).
55
BALKIN, supra note 1, at 31.
56
For a discussion of the degree of constraint that the Constitution provides according to Balkin’s
approach see Solum, supra note 22.
57
See, e.g., 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS
THE PEOPLE: TRANSFORMATIONS (1998).
58
59
(1991); 2 BRUCE ACKERMAN, WE
Larry Alexander, Judicial Review and Moral Rights, 33 QUEEN’S L.J. 1 (2007).
A well-known expression of this idea about the “impossibility of a Clause-bound interpretivism” is
of course Ely, supra note 8, at 11-41.
00
liberties under a certain set of conditions, and other structural elements of the
Constitutional text. Second, Balkin’s theory is based on a prior assumption about the
purpose of using principles—to create a framework for future constitutional
construction. But the purpose may well be a different one, for instance to refer to a
term of art, to indicate not more than its original expected application. In certain
contexts, such as the scope of human rights and their protection, it is simply inevitable
to use principles, regardless of one’s preferred constitutional framework.
In certain places Balkin’s analysis may be read as suggesting that the choice
between rules and principles, as such, teaches the interpreter about the purpose of the
relevant Constitutional provision. But if this was the case, Balkin’s theory would not
qualify as framework originalism, but as an inquiry that is aimed at finding a basis in
the text to one’s preferred theory of interpretation, based on distinctively ahistorical,
non-originalist considerations about the choice between rules and standards.60
In fact, Balkin’s position is more complex. It is not based on a mere abstract
inference of the Constitutional framework from the text. Balkin acknowledges the
legitimacy of considering additional sources of original character to establish what he
calls the “public original meaning” of the choice between rules and standards.
However, Balkin seems to object using sources of original character about the theory
of interpretation that the framers and adopters of the Constitution expected or desired.
One such source is historical evidence about the prevailing theory of interpretation
(independent of the choice between rules and principles) at the time of adopting the
Constitution. Some scholars suggest that historical research in this respect shows that
the preferred method of interpretation at the time of adopting the U.S. Constitution
was distinctively non-originalist, one which “favored a mobile over a static theory of
textual interpretation.”61
An additionally important original element in identifying the Constitutional
framework is information about the particular purpose of entrenching a certain norm
in the Constitution. Larry Alexander criticized Balkin’s position by arguing that the
idea that the framers chose to write Constitutional provisions in the form of
“principles” is highly unlikely, because principles do not provide any meaningful
guidelines.62 Criticism of this sort is plausible if one assumes, as Alexander does, that
the purpose of having a certain norm in a constitution is to “rulify morality,” that is, to
limit the discretion of future generations.63 But societies may well adopt certain
constitutional provisions for other purposes. For instance, Joseph Raz suggested that
the purpose of constitutionalizing the prohibition to violate certain human rights is to
enable “a common culture to be formed round shared intermediate [moral]
60
Cf. John O. McGinnis & Michael B. Rappaport, The Abstract Meaning Fallacy, 2012 U. ILL. L. REV.
737.
61
Hans W. Baade, “Original Intent” in Historical Perspective: Some Critical Glosses, 69 TEX. L. REV.
1001, 1004 (1991). For further discussions on this issue see, e.g., Saul Cornell, The People’s
Constitution vs. The Lawyers’ Constitution: Popular Constitutionalism and the Original Debate over
Originalism, 23 YALE J.L. & HUMAN. 295 (2011); Larry Kramer, Two (More) Problems with
Originalism, 31 HARV. J.L. & PUB. POL’Y 907 (2008).
62
Alexander, supra note 21, at 617. Alexander suggested that it is improbable that the original meaning
of various clauses in the Constitution is “an instruction to consult ‘moral reality’ and apply the
‘principles’ one finds there.” (id).
63
Alexander, supra note 58.
02
conclusions.”64 In other contexts, most commonly in deeply divided societies, the
quest for achieving consensus may be unattainable, and a constitution may be formed
only to ensure an ongoing dialogue through the interaction between the judiciary, the
political branches and the public opinion at large. In such cases, the Constitution does
end the debate but merely frames it. In other cases the Constitution serves to remove
certain issues from the debate.65
Balkin seems to be reluctant to take into account these types of original characters
of the text.66 He particularly opposes the use of evidence about original intent and
original expected application of the Constitutional text.67 Balkin’s position in this
respect is based on the unique status of the Constitutional text in his theory. In his
view, the U.S. Constitution’s text stands as a “potent symbol” of popular sovereignty
and the trans-generational project of self-government.68 In his words: “Inevitably,
then, we face a choice in the present about what aspects of cultural meaning should
constitute ‘original meaning’ for purposes of constitutional interpretation. There is no
natural and value-free way to make this selection. …It is a choice that is informed by
the purposes of a constitution and the promotion of the kind of legitimacy
(democratic, social, procedural, or moral) we want our government to have.”69
I disagree. I suggest that Balkin should have distinguished here between the
original sources that are relevant for interpreting the Constitution (according to a nonoriginalist choice of the preferable theory of interpretation) and those suitable for
identifying the Constitution’s original framework (to determine the theory of
interpretation on the basis of originalist considerations). The centrality of the text and
its semantic meaning as a “potent symbol” of popular sovereignty are relevant for the
former purpose. The non-originalist choice of a theory of interpretation, and for that
matter the decision what original sources should be considered in giving meaning to
the text, should indeed take into account issues of democratic legitimacy. I agree with
substantial parts of Balkin’s analysis in this respect, and to his insistence on ignoring
64
JOSEPH RAZ, THE MORALITY OF FREEDOM 181 (1986): “Assertions of rights are typically
intermediate conclusions in arguments from ultimate values to duties... The fact that practical
arguments proceed through the mediation of intermediate stages so that not every time a practical
question arises does one refer to ultimate values for an answer is... of crucial importance in making
social life possible, not only because it saves time and tediousness, but primarily because it enables a
common culture to be formed round shared intermediate conclusions, in spite of a great degree of
haziness and disagreement concerning ultimate values.”
65
See, e.g., Ruth Gavison, What Belongs in a Constitution? 13 CONST. POL. ECON. 89 (2002); SUJIT
CHOUDRY (ED.) CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION OR
ACCOMMODATION? (2008); HANNA LERNER, MAKING CONSTITUTIONS IN DEEPLY DIVIDED SOCIETIES
(2011).
66
See, e.g., Balkin, supra note 40, at 829: “In Living Originalism, I focus on original semantic meaning
(including generally recognized terms of art) and the adopters’ choice of basic technologies of
linguistic constraint: rules, standards, principles, and silences. The remaining aspects of cultural
meaning I treat as resources for construction, but not as part of the framework.”
67
BALKIN, supra note 1, at 11.
68
BALKIN, supra note 23, at 232-37. See also Jack M. Balkin, The Roots of the Living Constitution, 92
B.U.L. REV. 1129, 1133 (2012), where Balkin distinguishes between his “framework originalism,”
which “argues that fidelity to ‘original meaning’ requires fidelity to the semantic meanings of the
words in the text at the time of adoption, including generally recognized terms of art,” and “thick
original meaning,” to which he opposes, that “might include the original principles, purposes,
expectations, or assumptions of the adopting generation.”
69
Balkin, supra note 40, at 829.
03
original sources that are external to the text, such as the intentions of the framers or
expected original application of the text. But not so as far as the latter purpose is
concerned. Here the underlying assumption is that the original choice of the framers
and adopters about the Constitutional framework is relevant. As discussed above, this
original framework may be relevant to refute the argument that living
constitutionalism violates some originalist aspect of the Constitution, and it may be
needed to accord living constitutionalism some procedural legitimacy.
In sum, I don’t see a good reason to disqualify certain sources of original
character. As indicated above, the original elements do not gain lexical priority over
other considerations in choosing the appropriate constitutional framework. Taking
into account all original elements may well increase the persuasive power of Balkin’s
living originalism project.
6. Applying Balkin’s Theory to New Constitutions: A Comment on Israel
The Israeli Supreme Court, following the lead of its former President Aharon Barak,70
has adopted a distinctively non-originalist method of constitutional interpretation. A
central example is the expansive interpretation of the right to human dignity
(entrenched in Article 2 of Basic-Law: Human Dignity and Liberty), to cover the
rights to equality, freedom of expression, and more, despite indications from
originalist sources contradicting this interpretation of human dignity as a
“principle.”71 In fact, even the decision that the Basic-Laws are the supreme law of
the land, and are thus binding the legislature and authorize the Court to employ
judicial review of legislation, was primarily based on non-originalist considerations
and despite some contradicting originalist sources.72 The Israeli Court’s endorsement
of living constitutionalism, which I find justifiable, is probably among the main
reasons of the reluctance of the majority in the Knesset (which serves as both the
legislature and the constitutional assembly) to complete the process of enacting
Israel’s Constitution.
An important (although mostly implicit) reason for the deadlock in the attempts to
agree on a new Constitution is the disagreement about the underlying purpose of
having a constitution. The debate revolves around two main competing approaches.
One position refers to the formation of a new constitution as a codification of
preexisting norms and perceptions. It does not aim at creating a new social order or
“constitutional identity.” The Constitution is rather perceived as a manifestation of an
already existing identity, and the aim to provide a greater convergence between the
text and this identity. In contrast, a second position suggests that a new constitution is
aimed at establishing a new or at least a modified constitutional identity. (Following
the discussion above, if this debate is resolved, the choice between the competing
approaches should be considered in the inquiry of the “original” character of the
70
AHARON BARAK, THE JUDGE IN A DEMOCRACY (2006).
71
See, e.g., H.C.J. 466/07 Galon v. The Attorney General (2012).
72
C.A. 6821/93 United Mizrachi Bank v. Migdal Cooperative Village, 49(4) P.D. 221 (1995). See, e.g.,
Adam Shinar, Accidental Constitutionalism: The Political Foundations and Implications of Israeli
Constitution-Making, in, THE SOCIAL AND POLITICAL FOUNDATIONS OF CONSTITUTIONS (Dennis
Galligan & Mila Versteeg, eds., 2012).
04
Constitutional framework, and thus of the “original” choice of a constitutional
interpretation theory.)73
Balkin’s book suggests that we should consider a third purpose of having a new
constitution to Israel. The two positions discussed above share an underlying premise,
namely that the “constitutional identity” is entrenched in the constitutional document.
Both approaches reflect, to a great extent, the view that the Constitution is a finished
product, subject to only formal constitutional amendments. Balkin points at an
alternative view, of the Constitution as a merely initial framework for governance,
that must be filled out over time through constitutional construction. According to this
view, the Constitutional identity is an ever evolving, rather than a fixed concept. The
main purpose of adopting a formal constitution is not to entrench a certain—either a
pre-existing or a new—social identity. To the contrary, it is aimed at establishing a
mechanism that will enable society to constantly reevaluate and when needed to
redefine its Constitutional identity. The Constitution, this “thing” that binds the
current majority, is not a set of answers. Rather, it is mostly a reference to the rule of
reason, or to the Rawlsian concept of “public reason”. The text of the Constitution
serves as a “focal point” for an on-going debate and dialogue, in which all members
of society participate.74
My suggestion here addresses in particular the recent debate in Israel about the
proposed Basic-Law: the Legislation. This proposal, whose recent version was
published in 2012, is aimed at supplementing the set of eleven Basic-Laws which
forms Israel’s Constitution. The proposed version is far from being optimal from the
perspective of those who believe that the Constitution should entrench Israel’s
constitutional identity as a liberal democracy. Among the central concerns is the
proposal to authorize the legislature to override a judicial decision which declared a
statute unconstitutional. While I share these concerns, I think that the proposal
provides an important opportunity to adopt a constitution which is based on the above
mentioned third model. The proposed Basic-Law’s explicit recognition of the
normative status of the Basic-Laws as the supreme law of the land, as well as the
enactment of an override clause, can serve the vital purpose of enhancing a
“constitutional dialogue” which is missing in Israel’s politics and public discourse.
As Balkin admits, the method of principles does not bind future generations to a
certain set of constraints. It is true that the principles may not do much more than
provide a “Constitutional grammar and vocabulary.”75 Nevertheless, it may well serve
the role of enhancing constitutional discourse, a role which is of special importance in
a divided society as the Israeli one, which not only lacks a consensus about the state’s
“constitutional identity,” but also hardly engaged in a popular constitutional dialogue.
73
For instance, the former approach gives greater “procedural” legitimacy to interpret the Constitution
according to the newly formed “constitutional identity.” For a discussion see, e.g., GARY J.
JACOBSOHN, CONSTITUTIONAL IDENTITY (2010).
74
In Balkin’s words, “the Constitution is simultaneously a text, a set of political institutions, a source
of values and aspirations, and a repository of cultural memory.” BALKIN, supra note 1, at 97.
75
Id., at 31.