In class when we talked about whether we liked Brennan or Balkin more, I believe I said that I disliked Brennan because I thought his concept of “human dignity was too sappy.” After saying that, I realized that my comment sounded incredibly harsh, but the conversation moved on to a different subject so I did not choose to bring it back around again. Therefore, I’ll take the opportunity to explain myself further in this post.
I am a person who tends to see things as black and white, and while I am able to see some hints of grey, I still lean towards my original tendencies. In fact, I consider my objectivity, yet ability to see every aspect and perspective, one of my strengths, and one of the main reasons that enticed me to want to pursue a career in law.
Therefore, when reading Scalia, Brennan, and Balkin, I found myself being able to see strong and weak points for all three. I like Scalia because he believes that “it is only the laws [men] enact which binds us (17). But I had a hard time wrapping my brain around the concept of legislative intent because the word “intent” is precisely subjective in of itself, and I feel that to a certain degree, the text needs to stretch to current times. Brennan’s “pursuit of the constitutional ideal of human dignity” may appear promising at first, but I feel is ideal, not reality (33).
In addition, I feel that because Scalia and Brennan are Supreme Court Justices who have a reputation to uphold, the sole intent is to convince the audience that their ideas is the best. To do this, they do this by discrediting the other side’s argument (letter vs. spirit of the law). In turn, many of the arguments become repetitive and I was left feeling unsatisfied and unconvinced that strictly textualism or strictly living constitutionalism was the best way to go.
If I were to describe how Scalia and Brennan approached the Constitution in regards to the letter of the law versus the spirit of the law to someone who did not read these texts, I would use the following analogy: Think of a rubber band. According to Scalia, the band has little to no ability to stretch. On the other hand, in my opinion, according to Brennan, it would stretch to the point of breaking and flying across the room.
However, Balkin argues that textualism and living constitutionalism work with each other, not against; hence the name Living Orginalism. He is much more objective and logical about presenting his arguments without the slightest presence of ego, which is also evident in the video below where Balkin explains how sees the Constitution progressing into the year 2020:
For those of you who read Balkin, you will see that the three main principles he talks about are the same that he discusses in Living Originalism:
- Faithful/fidelity to the text and the underlying principles.
He calls this “fidelity to the constitutional project – and to the Constitution itself – requires faith that the Constitution can and will eventually be redeemed” (4). In the video, he states that there are clearly stated principles as well as ambiguous principles that must be interpreted by each generation. By being faithful to the Constitution, it means that you are on its side and trying to make it work.
- It is a democratic Constitution.
Not only does he believe in public opinion, but he states that it will “naturally identify with the generation that framed the constitutional text and . . . are being true to its deepest principles” (10). Therefore, instead of Scalia’s idea of legislative intent, if there is fidelity to the constitutional project and the Constitution, your intentions will follow suit. In order for the Constitution to be successful, we have to believe in it, which requires work from individuals to start or join social and political mobilizations, which are the institutions that create change.
- It is a work in progress.
Because the Constitution must change with each generation, it is always a work in progress. He acknowledges that it is not a perfect document, but progress can be made if you are committed to and believe in its potential. One of the quotes that I liked most from Living Originalism was that, “Constitutional construction changes by arguing about that we already believe what we are already committed to, what we have promised ourselves as a people, what we must return to, and what commitments remain to be fulfilled” (11).
Therefore, while the Constitution will always change, the obligation for society to abide by these three principles will not. I like Balkin because he links the past, present, and future, which I think is very much necessary for a document that will always be a work in progress. Because you have to think about what past generations left for you and how your decisions will affect future generations, hopefully the decisions you make now will not only be to satisfy the needs of current times, but will be something that you feel would be beneficial to others in the future as well.