Steven G. Calabresi and Livia Fine (Northwestern University - School of Law and Northwestern University - School of Law) hve posted Two Cheers for Professor Balkin's Originalism on SSRN. Here is the abstract:
Yale law professor Jack Balkin has recently argued in three forthcoming law review articles that originalism and living constitutionalism are compatible contrary to the claims of Supreme Court Justice Antonin Scalia. This essay explores Balkin's claims, agrees with him to some extent, but suggests a number of subjects on which Balkin needs to say more. Balin's writing is powerful, but we argue his approach to constitutional interpretation is in tension with some of the core fundamental principles of constitutionalism itself.
And from the paper:
For over a century now, the Cruel and Unusual Punishment Clause of the Eighth Amendment has been understood by the Supreme Court to embrace a proportionality standard.68 As an original matter that was a debatable proposition, but the words “cruel and unusual” are not as rule-like as other words that could have been used. The Framers could have banned “drawing and quartering, thumbscrews, torture, the rack, and water-boarding,” but they instead chose the more abstract phrase “cruel and unusual punishments.” It is reasonable to contend that this choice was deliberate and that the Eighth Amendment is a framework that acquires at least some new meaning over time, like the words “necessary and proper” in Article I, Section 8.
What is not reasonable, however, is to contend that because there is a constitutional standard, and because it can acquire new meaning over time, therefore judges and Justices can just issue holdings based on what the word or clause in question means to them. It is not enough for a majority of the Supreme Court to decide that in the views of five Justices the death penalty for rape of a child is cruel and unusual even though society as represented by the Congress of the United States no less had decreed the death penalty for child rape only a few years before in the Code of Military Justice.69 It is the American people’s understanding of what is cruel and unusual that evolves, not the understanding of five of the nine Justices.70 Standards are not void for vagueness, as Justice Scalia sometimes contends, but they are also not licenses for idiosyncratic personal judicial lawmaking or policymaking. To figure out what punishments are “cruel and unusual” or what laws are “necessary and proper” for execution of the enumerated powers, one must look to practice, social understanding over many years, the direction in which legal change seems to be evolving, and what works at the state level. We think Professor Balkin agrees with this, but it is an important point that needs to be made clear.
Highly recommended.
One quick observation: One of the central topics of Calabresi & Fine's essay is "compatibilism"--Balkin's view that originalism can be reconciled with living constitutionalism (to the extent that living constitutionalism acknowledges the constraining force of the constitutional framework). Expressed in terms of the distinction between "interpretation" and "construction," Calabresi and Fine emphasize agreement (in the abstract) with Balkin about constitutional interpretation (ascertainment of the linguistic meaning or semantic content of the Constitution), but emphasize the need for constraint in constitutional construction.
