Underlying Principles

Abstract

In his forthcoming article, Original Meaning and Abortion, Jack Balkin makes the startling disclosure that he is now an originalist. "[C]onstitutional interpretation," he writes, "requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. The task of interpretation is to look to original meaning and underlying principle and decide how best to apply them in current circumstances. I call this the method of text and principle."

In this brief reply, I caution that, to remain faithful to the Constitution when referring to underlying principles, we must never forget it is a text we are expounding. And it is the text, properly interpreted and specified in light of its underlying principles, not the underlying principles themselves, that is to be applied to changing facts and circumstances by means of constitutional doctrines. There is another highly familiar and very nonoriginalist way to see the relationship between "text and principle": One could discern the principles underlying the text, and then apply these principles directly to new circumstances. By so doing, one can end up potentially expanding the reach of, and even contravening, the text itself. Because Balkin sometimes appears to be endorsing the second of these two approaches to text and principle in this paper, he may give some readers the mistaken impression that he is still employing a living constitution approach under the guise of original meaning originalism.

Keywords: constitution, originalism