Constitutional Principles

Abstract

Principles that are not given by the constitutional text are sometimes attributed to the Constitution. This is done within Professor Balkin’s “framework originalism.”1 The question I wish to consider is how it may properly be done. How can it be shown that the Constitution is committed tacitly to a given principle? I shall discuss Balkin’s theory with that question in mind. Balkin presents framework originalism as a mean between mistaken extremes – between “conservative originalism,” which holds that constitutional meaning is completely settled, and “living constitutionalism,” which regards constitutional meaning as forever unsettled. Framework originalism holds, first, that the Constitution’s text should be understood in terms of its “semantic content.”2 I understand this to be the view that the meaning of the text is determined by the linguistic conventions that existed when the Constitution or an amendment was ratified. That would, at any rate, be the commonsensical, default position, which requires no justification. Any other approach to text meaning would require substantial justification. That, I take it, is the originalist aspect of Balkin’s theory. Framework originalism holds, second, that the Constitution provides a “plan” for developing a system of governance. This, too, is the default position. The Constitution provides for a Congress, a President, and a Supreme Court, whose respective authorities it outlines. But the Constitution does not generally tell Congress what laws to enact, how the President should enforce the law, or how the Supreme Court should adjudicate. So the Constitution leaves much to be done by those who are authorized under it to make and apply laws. That, I take it, is the framework aspect of Balkin’s theory. Framework originalism holds, third, that as the Constitution’s plan is mainly given in general terms, it frequently requires interpretation. Interpretations are provisional and might reasonably be changed. Changing circumstances may generate reasons for questioning a prevailing interpretation, and amendments call for a revised interpretation of the modified document. As framework originalism accepts facts like these, it is presented by Balkin as a kind of living originalism. That, too, seems right.