University of Illinois Symposium on "Living Originalism"Michael Ramsey

The University of Illinois Law Review has posted papers from its symposium on Jack Balkin's book Living Originalism.  It's an all-star line-up, including Larry Alexander, Randy Barnett, James Fleming, Jeffrey Goldsworthy, Sanford Levinson, Gerard Magliocca, John McGinnis & Michael Rappaport, Adam Samaha, and Mariah Zeisberg (plus a response to all from Jack Balkin).

(Thanks to Balkinization for the pointer.)

All the contributions are outstanding, but I especially like the introduction to my colleague Larry Alexander's:

In the modern era of constitutional theorizing, there is no shortage of Panglossian theories to offer, theories in which constitutional constraints on the theorist’s normative preferences are as flimsy as a negligee’s on carnal appetites. Despite Professor Henry Monaghan’s sardonic invocation of “Our Perfect Constitution,” the list of those who believe the Constitution—the actual one—is no more than a hair’s breadth from normative perfection continues to grow. This assertion of perfection is easy for nonoriginalists. After all, for them, the Constitution is not a historical artifact, a document that is the repository of norms promulgated by real people at specific historical moments and whose promulgated norms mean no more or less than what those promulgators meant by them. Rather, for nonoriginalists, the Constitution is a gauzy idea of good and just government, the specific content of which is up for grabs. …

For originalists, however, constitutional imperfection is not only a possibility, but is, for many, an unhappy reality. Those who wrote and ratified the Constitution and its amendments may have been wise, just, and fully engaged at their “constitutional moments,” but they were nevertheless imperfect beings made of the same crooked timber as all of us. Although originalists range from the optimists, who either find the processes of ratification and amendment to be reassuring with respect to substantively good content or have examined the content on its own terms and pronounced at least most of it to be excellent, to the pessimists, who find the content to be either deplorable or mainly irrelevant to modern concerns,6 all originalists believe the Constitution to consist of those norms promulgated by actual humans and that mean what their promulgators intended them to mean—for better (say the optimists) or for worse (say the pessimists).

The advantage originalists hold over nonoriginalists is that for the former, the actual historical document and its promulgators are front and center. Nonoriginalists have difficulty explaining what they even mean by “the Constitution.” They express allegiance to the parchment in the National Archives with its various markings. But those markings only count as a text, much less a text in a particular language, if we assume they were made by actual people who meant something by them. Any set of symbols detached from their author(s) can mean anything—because they could have been made by anyone intending to communicate an indefinite number of meanings by them—or nothing at all, as when the “symbols” are produced mindlessly and thus are not really symbols at all.  The advantage nonoriginalists hold over originalists is that they can slip the bonds of the actual Constitution’s intended meaning and, depending on the occasion, impose their preferred normative theories on the rest of us through the courts, or free us as legislators from asserted limitations on our power to achieve what we consider desirable.