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07/16/2014

Jack Balkin: How Liberals Can Reclaim the Constitution
Michael Ramsey

In the Washington Post, Jack Balkin: How Liberals Can Reclaim the Constitution.  From the conclusion:

The notion that in order for liberals to believe in a living Constitution they have to reject originalism in all of its forms is the biggest canard ever foisted on them. Liberals should claim for themselves — as conservatives already have — not only the constitutional text but the entire constitutional tradition, including the ideals and hopes of the generations that fought to create a new nation and establish the Constitution.

The founders — including the Reconstruction framers who gave us the 13th, 14th and 15th amendments — created a framework on which later generations must build to realize the Constitution’s great promises of liberty and equality. It is our job, in our own day, to further that great work. That is the liberal vision of the Constitution, and it is both originalist and living constitutionalist.

Via Balkinization, where Professor Balkin adds:

The point of the piece is not that liberals should all become Scalia-style originalists and start talking like movement conservatives do. Rather, it's that liberals should simply reject the false dichotomy between originalism and a living Constitution.

Accepting that opposition as  the proper frame for debate just locks liberals into a clever rhetorical strategy created by movement conservatives in the 1980s, who wanted to put themselves on the side of the American constitutional tradition, and liberals on the outside looking in.  Contemporary liberals should reject that invitation. The American constitutional tradition, understood in its best light, is a liberal egalitarian tradition.

I'm all for using originalism to reach liberal results -- I think that's the best way to defend originalism from the charge that it's no more than cover for a conservative agenda.  But Balkin seems to go to the opposite extreme, and find that (his version of) originalism always (or almost always) leads to liberal results.  Why is it not most plausible that the Constitution is a set of rules, drafted without knowledge of modern political squabbles, that sometimes leads to conservative results (in modern terms) and sometimes to liberal results?  Sadly, there is not much constituency for that proposition.