Monday, August 28, 2006

More On Balkin And Originalism

Jack Balkin adds to his argument against expectation originalism, which he earlier defined as being bound to the original expected applications as well as the original public meaning of the Constitution.

Balkin makes an interesting distinction between the search for the proper meaning of the Constitution and how specific actors should interpret the Constitution. In other words, he separates the question of how the Constitution should be interpreted from the question of how judges should interpret it.

His analysis is a response to a standard originalist argument that the Constitution must be interpreted according to the original meaning because otherwise the judges are given too much leeway to decide cases. In essence originalism serves a pragmatic function, constraining judges and protecting democracy.

I believe the pragmatic argument is reasonable, but must take into account that other methods of constraining judges might be more effective. If those methods work better and the sole function of originalism is to limit judges' discretion, then the underpinnings of originalism come crashing down.

Of course I believe there are normative reasons for adhering to the original public meaning of the text, so in my eyes Balkin's argument is not as forceful. But his separation between the normative and pragmatic basis for any form of constitutional interpretation is important to note.

2 Comments:

Blogger David Fryman said...

>>he separates the question of how the Constitution should be interpreted from the question of how judges should interpret it.

That sounds like a distinction without a difference. I don't get it.

9/05/2006 10:43 AM  
Blogger Nephtuli said...

The difference is who should interpret it. Judges have other obligations when interpreting the Constitution.

For example, Justice Thomas believes that most of the modern Court's Commerce Clause jurisprudence is woefully incorrect, but he'll allow precedent to influence his opinion. So while the Commerce Clause should be interpreted narrowly, a judge should interpret it with an eye on how other judges have decided previous cases.

9/08/2006 10:33 AM  

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