Jack Balkin performs a fine service in supplying us with the one-stop-shop style column for Slate attacking Originalism. Balkin’s point is that while Originalism sounds seductive, no one truly adheres to it since it is impossible. The column also serves as a fairly thorough laundry list of hypocrisies by Scalia and Thomas on this matter, who cite Originalism when it politically suits them but more often than not reach inside the precedent well when an Originalist position would clash with their ideals (such as their both finding a 14th Amdt equal protection argument in the Warren court for the Florida voters in Bush v. Gore. One academic point Balkin declines to make is simply that legislation is basically a collective compromise of often clashing intents and, as such, finding intent is just as much a crapshoot as anything else.
Excerpt:
But there’s a more important problem here: Non-originalist decisions that guarantee race and sex equality, that protect free speech and the rights of criminal defendants, and that give Congress power to protect the environment and secure equal civil rights are not unfortunate errors that we are just stuck with because of “reliance.” They are some of our country’s proudest achievements. There’s something deeply wrong with a theory of constitutional interpretation that treats some of the key civil rights decisions of the 20th century as mistakes that we are stuck with. For if decisions like Brown, Loving, Craig v. Boren, and Griswold v. Connecticut are mistakes, we should read them as narrowly as possible and overturn them at the first opportunity. But that’s not how Americans regard these decisions. They are evidence of our gradual progress as a nation. They are what make us a country conceived in liberty and dedicated to the proposition that all people are created equal.
The great irony is that living constitutionalism rests on much firmer jurisprudential foundations. Originalists are right that the Constitution is binding law, but they confuse the constitutional text—which is binding—with original understanding and original intentions, which are not. A living Constitution requires that judges faithfully apply the constitutional text, given the meanings the words had when they were first enacted, applying those words to today’s circumstances. Original meaning does not mean original expected application. For example, the Constitution bans cruel and unusual punishments. But the application of the concepts of “cruel and unusual” must be that of our own day, not 1791. Living constitutionalists draw upon precedent, structure, and the country’s history to flesh out the meaning of the text. They properly regard all of these as legitimate sources of interpretation. In fact, most people who call themselves originalists agree; even they don’t regard original understanding as controlling in all cases.