I’ve been having an exchange with Andrew Torrez of the Opening Arguments podcast about originalism and it has prompted me to go back and reread some things, including parts of Jack Balkin’s book Living Originalism, an alternative version that I find very compelling.
In this passage, I think he explains well, perhaps without trying to do so, the psychological appeal of the conservative versions of originalism (Balkin’s version is a liberal one). And it relates to the analogy between interpreting constitutional text and interpreting religious texts.
Originalism and textualism, in their various forms, have been central methods for the legitimation and critique of regimes and practices of belief. And not only in America. I would venture to say that in almost every creedal community — every community that organizes itself around a set of practices and beliefs inherited from the past — a return to origins and to basic principles is a standard method for urging reform, and especially radical reform.
In a creedal tradition organized around a central (or sacred) document, each generation — situated as it is and facing the problems it faces — places glosses on the document, and those glosses are bequeathed to the future as what the document means. Later generations, finding these interpretations inadequate to their time, try to remove some of those glosses and return to the original, redeeming its promise, but what they actually is preserve some of the older readings while adding newer glosses on top of them. The history of creedal texts is the history of continuous glossing and stripping away of glosses — and continuous claims of return, restoration, and redemption that are, from the perspective of later generations, yet more readings and rereadings that must someday be critiqued, judged, and possibly undone.
I do not claim that this is true as a matter of logical necessity. I do claim it as characteristic of the American constitutional tradition and, indeed, of many other traditions as well. Repeatedly, constitutional dissenters and insurgent movements have turned to the constitutional text and to the great deeds and commitments of the past — including most particularly those of the founding generation — as a justification for their assault on the status quo.
My friend and colleague Bruce Ackerman has famously denounced what he calls the “myth of rediscovery” in American constitutional law — the notion that we can justify major transformations like the New Deal as a return to original principles and commitments. In fact, Ackerman argues, American constitutional development features a succession of gnerations engages in acts of constitution making that displace and build on older ones.
I agree with Ackerman that the history of American constitutional development has been one of continuous change, but I disagree that the “myth of rediscovery” is a myth in the pejorative sense that Ackerman means to convey — a false story that obfuscates the truth about social life. Rather, myths are stories that reveal deep verities about the human condition. So it is with our life as a constitutional community. The tropes of fidelity to text and principle, and or constitutional restoration and redemption, are not simply fables we tell ourselves. These tropes allow us to see the Constitution as a project that connects different generations and identifies them as a single people stretched out over time. The notion that we, like those before us, are striving to be faithful to the Constitution’s text and underlying principles, and that our job is to restore and redeem them in our time, allows the Constitution to achieve simultaneously the multiple functions that a constitution like America’s must perform — a basic framework for policy and lawmaking; an honored source of values and aspirations; and a cherish object of fidelity and attachment that symbolically binds different generations together and allows to identify with each other over time.
In all of these facets, there is a nearly exact mirror to be found in the way fundamentalist and literal-minded Christians view the Bible, with that last paragraph expressing a more liberal view of the Biblical text as one that evolves over time as our understanding changes. The two sides at play in each — liberal and conservative constitutional interpretation and liberal and conservative Biblical interpretation — function pretty much identically as a matter of human psychology. They reflect one’s psychological preference for either simplistic or nuanced and more thoughtful approaches to the texts.
The one obvious difference, however, is that the Bible is supposed to be the word of God himself, while the Constitution is something quite different. What Balkin has laid out here is what is sometimes called framework originalism, the idea that the Constitution sets up a framework or structure that allows for the evolution of legal doctrine as society changes over time.
I would count myself as closer to Ackerman on the question of the absurdity of the constant calls for return and redemption than I am to Balkin, however. I think such movements are fundamentally mistaken precisely because of framework originalism. Yes, our understanding of the meaning of the text of the constitution changes with each generation. And this is a very good thing. As Jefferson put it in calling for a new constitutional convention every generation (no thank you, I certainly don’t want that), it’s like expecting a man of 25 to wear the same clothes he wore at the age of five.
But we don’t need to rewrite the constitution every generation because framework originalism, and Balkin’s idea of living originalism, solves that problem by allowing for the slow, stead reinterpretation of constitutional provisions and texts as the needs of society change over long periods of time. I’ve never really cared for the idea of living constitutionalism, but I would certainly argue that the constitution allows for this dynamic of change through the constant back and forth of debates over legal doctrines, constitutional texts and the slow accretion of precedents that continually tweak and adjust our understanding of those doctrines and texts. It’s something of a mixed system, partly creedal and partly common law, and I think it’s served us quite well over the last 230 years.