Construct or Construe

Stephen Sedley

  • Living Originalism by Jack Balkin
    Harvard, 474 pp, £25.95, January 2012, ISBN 978 0 674 06178 1

Living originalism? The heart sinks. Is this going to resemble a treatise on secular spirituality or tabloid ethics or some other well-meant oxymoron? To a degree, the despondency is justified. How can you breathe life into a text if its meaning remains what it was in 1787 or 1868? Jack Balkin, who holds one of America’s premier chairs of constitutional law, argues that you can. He is not seeking to recruit diehard originalists to the cause of creative interpretation of the US constitution, or to persuade them and their antagonists that they are all really in the same business. What he sets out to do is to offer an account of modern American constitutional adjudication which, while keeping the fundamentalists at bay, begins with fidelity to the text but recognises that, if it is to continue to be the basis of a living polity, it has to be creatively bodied out as time goes by.

It is a troubling comment on the state of America’s constitutional law and politics that such an enterprise is considered necessary. Its equivalent in Britain would be a book explaining why Magna Carta, while still seminal, does not have the significance it had in 1215. The reason for the difference is that the politicisation of the US Supreme Court, which has the final word on what is constitutional, has collapsed a major part of the distinction between law and politics in the United States and significantly realigned the separation of powers. This was not the doing of the framers of the constitution. It was the Supreme Court itself which, in 1803 in the historic case of Marbury v. Madison, held itself to have the power to determine the constitutionality of congressional legislation. The ambit of the court’s jurisdiction has never been seriously challenged since then. Balkin’s endeavour is to redefine the consequent geometric model – a pyramid with the people at the bottom, state and federal legislatures above them and the federal courts at the top – as an organic democracy in which, almost cyclically, each element respects and influences the others.

To do this, Balkin breaks down constitutional interpretation into the ascertainment of meaning (for example, what ‘speech’ in the First Amendment embraces) and constitutional construction: how do you apply your interpretation? I believe this to be a false dichotomy. You cannot ascertain the meaning of words except in relation to known or supposed facts. The question of what ‘speech’ means in the First Amendment can be discussed only if you ask it in relation to, say, flag-burning. In fact Balkin himself implicitly recognises this by his adoption of a protean mode of constitutional interpretation that embraces both meaning and application. To do this he uses the word ‘construction’ to correspond with the verb ‘to construct’ rather than ‘to construe’. By so doing he not only compounds but expl0its the incomprehension that has beset generations of law students, whose teachers rarely start by explaining that the construction of contracts or of statutes means taking them apart, not putting them together.

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