Originalism Is For Progressives

Jack Balkin returns to the issue of originalism and why progressives should embrace it:

Doug Kendall and Jim Ryan's essay in the New Republic makes the eminently sensible point that progressives should stop viewing originalism as the enemy just because they have come to associate it with people they disagree with politically. Instead, they should recognize that originalism is the right approach for progressives as well as conservatives . . .

It's important to remember that before Antonin Scalia and Clarence Thomas, there was Hugo Black, one of the great liberal defenders of the Bill of Rights, who made originalist arguments for the positions he took. Originalism is not the interpretive philosophy of stand patters. It is the philosophy of people who want to restore and redeem the Constitution's promises in a world where they have been forgotten or disrespected. . . . If liberals think that the current generation of conservative judges have hijacked the Constitution and twisted its meaning, they shouldn't respond by callling for a counter-hijacking. Rather they should follow the example of Hugo Black. They should call for a return to first principles, to the best interpretation of the Constitution's original meaning and underlying values. They should be originalists once again.

Many progressive scholars avoid these conclusions because they know that life is change. They are worried that originalism means giving up the idea of a living constitution-- a constitution that adapts to changing times. Nothing could be further from the truth, as I have explained here and here. Properly understood, fidelity to original meaning and living constitutionalism are not opposed positions. They are two sides of the same coin.

Indeed. I have agreed with Professor Balkin on this point for a while, most notably here.

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      Although I think "progressive originalism" could "fit" the modern progressive agenda with regard to social issues, it might be less adaptable on economic and federalism issues.

    Why? (none / 0) (#2)
    by Fritz on Thu Jul 26, 2007 at 11:50:35 AM EST
    The only venue available to progressives is the Court, why would they want the Court to act as Thomas & Scalia?  Your previous post about Congress over reaching it's powers of investigation is an example of unconstitutional activism.  Didn't Democrats agree, that the independent council statue was a mistake?  This is criminalization of politics.  SCOTUS will not allow Congress to harass the Executive Branch.  If anything, Patrick Fitzgerald should not have been allowed to investigate the OVP.

    You have to have the ability to read (none / 0) (#3)
    by Big Tent Democrat on Thu Jul 26, 2007 at 12:09:40 PM EST
    to understand the arguments.

    You are not qualfied to discuss the issue.


    The Original Intent Lie (none / 0) (#4)
    by Aaron on Sat Jul 28, 2007 at 03:09:30 PM EST
    The concept of "original intent" is an idea that has been carefully and calculatedly manipulated by conservatives, while progressives have tacitly accepted their framing of constitutional arguments, relegating themselves to a perpetually disadvantaged state.

    Read Akhil Reed Amar's  book, America's Constitution: A Biography.

    One wonders why the Democrats and liberals in this country have allowed this "original-isum" idea to become so firmly entrenched in the mind of the public, to the point where most uninformed people now believe that the Republicans and their judicial political agenda is directly supported by the text of the Constitution. It was a monumental mistake that our country will pay dearly for as this new Supreme Court dismantles established law.

     PS The New Republic sucks, but every once in awhile they try to make up for it.