In his continuing exchange with Jack Balkin, Gerald Magliocca now writes: "[O]riginalism may be the most powerful brand ever developed by constitutional theory, which explains why it is being embraced by so many and why it is probably inevitable that it will lose its distinctiveness." Of course, I do think that everyone ought to be an originalist in the broad sense, but it simply isn't the case that everyone is. Balkin suggests that many "living constitutionalists" reject the core premises of originalism (i.e., (1) that original meaning is fixed at the time each constitutional provision is framed and ratified, (2) the meaning that is fixed can only be changed by constitutional amendment, and (3) that original meaning should substantially constrain constitutional doctrine). And Balkin suggests that David Strauss and Ronald Dworkin do in fact reject originalism.
Replying to Balkin, Magliocca writes, "Moreover, I think that Jack is wrong when he says that Ronald Dworkin and David Strauss cannot be called originalists under the current meaning of that term. Presumably, they also think that we are bound by the original public meaning of the "hard-wired" constitutional provisions." But this is simply false. Dworkin accepts the idea that the text of the Constitution is a starting point for constitutional doctrine, but constitutional law is a function of the theory that best fits and justifies our whole institutional practice, and hence it can be appropriate for courts to decide cases in ways that are inconsistent with the original meaning of even the "hard wired" provisions of the Constitution. And Strauss might give the text some weight in constitutional adjudication, but his common law approach to the development of constitutional doctrine is not bound by the original meaning of the text. Indeed, the most popular rival to originalism today (some version of Bobbitt's multiple modalities view or Stephen Griffin's pluralist approach) explicitly rejects the idea that the text has lexical priority among the various considerations that (according to pluralism) are the appropriate sources of constitutonal reasons.
Of course, some versions of living constitutionalism do accept the binding force of the original meaning of the text, and hence are compatible with originalism. Thus Balkin's new book on constitutional theory is called Living Originalism. But there is also a strain of living constitutionalism that rejects the idea that the communicative content or semantic meaning of the
Constitutionalism is fixed and another strand that would deny that meaning binding force.
"Originalism" may be "the most powerful brand ever developed by constitutional theory," but there are living constitutionalists who, like Tareyton smokers, "would rather fight than switch." Some people still buy Tareytons, and some constitutional theorists still reject originalism.
