« Robert Post: Tension in the Unitary Executive
Michael Ramsey
| Main | Barzun on Originalism and Living Constitutionalism
Mike Rappaport
»

06/11/2020

More from Charles Barzun on Originalism and Nonoriginalism
Michael Ramsey

At Balkinization, Charles Barzun: An Unoriginal Joke (Part II), or Why We are all Living Constitutionalists. From the introduction: 

In Part I of this post [Ed.: noted here], I sought to explain the point of a joke tweet I had made in which I offered a theory of living constitutionalism as a satire.  The point was to pose a question to the new generation of originalists.  It asked, given how potentially capacious an understanding of originalism they defend, what’s at stake for them in defending it?  Why does it matter to them to prove originalism true if its substance has become so diluted?
 
This Part puts the same question to the other side of the debate.  The worry is that originalism has become so drained of substance that it’s no longer worth resisting.  If Jack Balkin can be an originalist, why can’t we all?  Is there any essential idea at the heart of living constitutionalism to which even a very ecumenical form of originalism fails to do justice?
 
I think the answer is both yes and no.  I think that there is such an essential idea but that it’s one even originalists accept or should accept.  Once we see why that is, it becomes possible to reframe the traditional debate in a way that, in my view, shows more clearly the question at the heart of what Larry Solum has called The Great Debate.
 
In my view the supposed convergence of originalist and nonoriginalist approaches and outcomes is greatly overstated, although it seems to be assumed among some (nonoriginalist) constitutional theorists.  Consider, for example, the "faithless electors" case, discussed by John McGinnis here.  The question is whether states can punish or replace electors who vote (or plan to vote) for persons other than the candidate who received the most votes in their respective states.  As Professor McGinnis recounts, some Justices at oral argument seemed concerned that a ruling against the states would have unfortunate modern consequences.  That seems an appropriate concern as a matter of nonorignalism but (as Professor McGinnis says) an inappropriate concern as a matter of originalism.  And whether the Justices take that concern into account or not may well be determine the outcome of the case.  So I remain unpersuaded that there's no real difference between originalism and nonoriginalism.