Can Originalism Be Saved

INTRODUCTIONJack Balkin's ambitious and impressive book, Living Originalism, announces its mission in its title.1 "Living constitutionalism" and "originalism" seem like antonyms. Living constitutionalism, roughly speaking, is the view that what the Constitution requires changes over time, even if the document is not formally amended. Originalism holds that the requirements of the Constitution were fixed, at least in crucial respects, at the times that its respective provisions were adopted. Professor Balkin's task is to reconcile these views: "Properly understood," he says, "these two views of the Constitution are compatible rather than opposed."2But beneath the surface, reconciliation is not quite an adequate description of what Balkin is trying to do. "Reclamation" might be better: Balkin wants to reclaim originalism for what would usually be described as liberal or progressive constitutional principles. Today, originalism is associated with "conservative" views about the Constitution: concern about extensive federal power; skepticism about gay rights; hostility to Roe v. Wade.3 Living constitutionalism, rightly or wrongly, tends to be associated with the opposite views, and constitutional principles that many "progressives" would like to see developed and extended, such as forbidding discrimination on the basis of sexual orientation, seem to require a living constitutionalist justification. Balkin's reclamation project is an effort to show that progressive principles can be justified on originalist grounds. Indeed, he says, originalism, properly understood, supports those principles; only originalists who misunderstand originalism would reject them.4Do these twin projects - reconciliation and reclamation - succeed? Only, it seems to me, by treating originalism not as a way of resolving constitutional issues but rather as a rhetorical resource: a means of enlisting our constitutional forebears in support of views that we have arrived at for other reasons. That is Balkin's achievement, and it is important. But, in my view, it does not establish originalism, in any recognizable form, as a way of doing constitutional law.I. THE ORIGINALIST DILEMMAThe central challenge that Balkin's project has to overcome is that originalism seems to be either implausible or entirely manipulable. The only kind of originalism that is reasonably determinate leads to conclusions that practically no one accepts.5 But less determinate forms of originalism can be enlisted to support pretty much anything.The problem can be illustrated with Brown v. Board of Education,6 the case that declared state-sponsored school segregation to be unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. When the Equal Protection Clause was adopted, it was understood not to invalidate racial segregation in public schools.7 That conclusion is nearly universally accepted.8 Notably, the Supreme Court in Brown all but conceded as much.9 But Brown is a fixed point in constitutional law; no approach to constitutional interpretation can survive if it does not accept Brown. So if originalism holds that constitutional provisions require and forbid only what they were understood to require or forbid when they were adopted, then originalism is implausible.How can originalism be reconciled with Brown and therefore be saved from implausibility? The usual response is to say that Brown is consistent with originalism as long as the original understandings are characterized at the right level of generality.10 The proper way to understand the Equal Protection Clause - according to this defense of originalism - is that the Clause adopted a principle of racial equality.11 The drafters and ratifiers of the Fourteenth Amendment believed that segregation was consistent with racial equality. But we now know better. And - on this account - our only obligation is to be consistent with the principles that the Fourteenth Amendment established. …