Law & Society Blog

If you are like me, you are a bit tired of the originalism debate in American constitutional law. I can never quite shake the feeling that, if the authors of the Federalist Papers had championed universal health care and equal funding for public schools, many present-day originalists wouldn’t be so orginalist. The second reason why I am weary of the debate is that even the best arguments for (dominant Scalia-style) originalism seem pretty weak: that originalism provides certainty and undisputability that no other form of comprehending the Constitution can provide, to cabin in judicial discretion. In other words, orignialism today is a default position, adopted because we are at a loss how else to control the Least Dangerous Branch.

But I’ve found what Jack Balkin has to say about originalism refreshing, and he has now posted an interesting critique of Randy Barnett’s recent Taft lecture. Here is a taste:

Randy concludes his essay by arguing that people are tempted to look to underlying principles because “it appears to yield better results than respecting the text and nothing but the text.” He gives Brown as an example. But he is wrong to suggest that the choice is either underlying principles or “the text and nothing but the text.” As I have argued, we cannot look only to the text when it is relatively abstract. We need both underlying principles and implementing rules to decide concrete cases. We need them to be faithful to the original meaning of the text. The requirement of fidelity demands that the underlying principles and implementing rules must always be consistent with the text.

I’ve always suspected that the debate will evolve to the point at which the opposing views become indistinguishable in all material respects, and I think we are one step closer.

Update: Here is Larry Solum’s take on Balkin & Barnett.

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