Academic

Balkin on Living Constitutionalism, Part Three

By Lawrence Solum

Check out Jack Balkin's What is Living Constitutonalism?  Here is a taste:

In general, living constitutionalism of the sort I've described allows social and political mobilizations, working over long periods of time, to shift the interpretation and application of abstract clauses and open ended features of the Constitution. But for the most part it has not altered the "hard wired" features of the Constitutional text. (To the extent the latter has happened, it is really quite exceptional, and, I think, quite wrong). This approach is faithful to the Constitution's original meaning but not necessarily the original expected application of the text. Long term changes in constitutional culture can move us from Plessy v. Ferguson to Brown v. Board of Education, but they won't allow a 34 year old President, or three Houses of Congress, or a simple majority of one House to overturn a Presidential veto. While Article V amendment is necessary for changing these hardwired features of the Constitution, the interpretation, implementation, and application of vague and abstract clauses like "equal protection" can and does change through sustained political mobilization.

To me it is not at all surprising that fights between so called originalist and living constitutionalist approaches almost never concern the hard wired features of the Constitution; they almost always concern the Constitution's abstract guarantees and its silences. Most living constitutionalists assume that the hard wired features of the Constitution are binding even though they were created a long time ago. That is to say, they do not object to the dead hand of the past with respect to those features; their concern is primarily the construction and interpretation of those clauses and features that use the language of general principles and standards. They argue that we are not bound by how the generation of 1791 or 1868 would have applied the text. I think they are right about that. It is our job to interpret the text in our own time.

Under this model of living constitutionalism, successive generations may not reject the Constitution's text and principles, but they may decide how best to honor, implement, and apply them through constitutional constructions and doctrinal implementations. We can reject Plessy v. Ferguson, which is simply one generation's attempt at implementing the Constitution, but not the words of the equal protection clause.

I think this is one of Balkin's clearest expositions of his view, and it helps to explain why Balkin is a "compatibiist" about "originalism" and "living constitutionalism."  Using the distinction between "interpretation," which determines the semantic content of the constitutional text, and "construction," which resolves vagueness (and provides what Balkin calls "doctrinal implementations"), Balikinzed compatabilism is the view that originalist constituitonal interpretation is compatible with living constitutionaiism in construction.

Read Balkin.

Full post as published by Legal Theory Blog on March 27, 2008 (boomark / email).