Dorf on Law: Labels Matter: How Professor Jack Balkin Snookered Justice Kagan and Others to Fuel Faux Originalism

Segall's got a point here.  History helps us understand how we achieved our current understandings.  It is not a command to, for example, understand equal protection the way an 1868 Republican did, nor due process the way it was understood in 1215, 1787, or 1868.   The meaning for us is what we must arrive at. If you want to call that realism, I dunno.  - GWC

Dorf on Law: Labels Matter: How Professor Jack Balkin Snookered Justice Kagan and Others to Fuel Faux Originalism

By Eric Segall

In 2007, Professor Jack Balkin of Yale Law School shocked the academic world by arguing that Roe v. Wade could be justified under an "originalist" approach to constitutional interpretation, and that living constitutionalism and originalism were opposite sides of the same coin. Balkin would later expand that article into a book called, of course, "Living Originalism." 

I want to be crystal clear on two points before moving forward. Balkin's descriptive accounts of constitutional law (which rely considerably on social movements) are as sophisticated, interesting, and accurate as any I have ever read. However, his labeling of his theories as "originalism" has not been helpful and has clouded rather than clarified constitutional debates. 

In his article on abortion and original meaning, published several years before Elena Kagan's confirmation hearing in 2010, Balkin wrote the following: "When the text is relatively rule-like...the underlying principles cannot override the textual command.... But where the text is abstract, general or offers a standard, we must look to the principles that underlie the text to make sense of and apply it." 

Balkin used this framework to argue that the 14th Amendment, read at a suitable level of generality, could justify Roe as an originalist matter because judges today are not bound by the specific expectations of those who ratified the Constitution and its Amendments but rather the broad principles they laid down. Thus, the equal protection principle supports a woman's right to choose. In Balkin's words: "Laws that discriminate against women and keep them in conditions of dependency violate the Fourteenth Amendment's Equal Protection Clause because they violate the principles against class legislation, caste legislation, and subordinating legislation."

This blog post is not about original meaning and abortion with the caveat that, of course, if judges are allowed to use modern standards to enforce broad principles like equality under the law that is not originalism in any meaningful sense of the term as I and others have argued about a zillion times.

Balkin's "originalist" turn was much discussed, debated, and conferenced at the time inside the legal academy. When the piece came out, Elena Kagan was Dean of Harvard Law School and would continue in that role for a couple more years. I have no personal information that she was aware of Balkin's work, but if she wasn't, that would be quite surprising. 

Here is what Kagan said at her confirmation hearing when asked about originalism (this link is to a video clip):

“Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do. In that way, we are all originalists.”

Kagan's "text" and "principle" approach (Balkin's words in his scholarship) to constitutional interpretation is quite similar to Balkin's theory. Let's give Kagan credit for understanding that allowing judges to use broad principles underlying most of the Constitution's imprecise provisions results in the kind of living constitutionalism that originalists have long said they deplored. Nevertheless, her uttering of that sentence--"In that way, we are all originalists"--unlike Balkin's work, reverberated both inside and outside the legal academy in ways I just can't believe she anticipated (she was testifying in front of the Senate which at the time was controlled by Democrats so she knew she had the confirmation all but locked up). 

Justices Gorsuch and Kavanugh both cited Kagan's statement about originalism in their confirmation hearings to great rhetorical effect. But Kagan's statement has been used (read manipulated) in many places before and after those confirmation hearings, almost always by folks who want to pretend that originalism is our law or should be our law. I don't believe, though I concede it is rank speculation, that Kagan would have made that statement without Balkin's scholarship explicitly tying liberal results like Roe to originalism.

Here are representative examples of the attention (read harm) caused by Kagan's statement: 

Senator Mitch McConnell, (2020) sent out a newsletter with the title: "We are all Originalists," citing among others Justice Kagan.

The Blog of the Legal Times (2010), devoted to "law and lobbying in the nation 's Capitol," ran the headline "Kagan: We are all Originalists."

Politico (2010): "Elena Kagan’s testimony during her Supreme Court confirmation hearings...officially ended the heated debate over conservative 'originalism' versus liberal 'living constitutionalism.'"