Constitutional Cultures, Democracy, and Unwritten Principles

In Living Originalism, Jack Balkin offers an account of the U.S. Constitution’s legitimacy and presents a theory for reconciling originalism and living constitutionalism. In describing the Constitution’s legitimacy, he distinguishes between the functions of a constitution as a “basic law,” a “higher law,” and “the people’s law.” According to Balkin, the legitimacy of the U.S. Constitution stems from its serving as a higher law, as well as the people’s law. Next, in reconciling originalism and living constitutionalism, he relies heavily on the distinction between interpretation and construction. The object of interpretation, the Constitution’s original meaning, should not be changed except by formal amendment, while constructions can legitimately be changed by later ones, so as to better reflect contemporary values. This Article focuses on possible weaknesses in both of these arguments.First, by drawing on the constitutional traditions of other countries, this Article notes that some constitutions do not serve as higher law or the people’s law. For example, the Australian Constitution serves as a basic law but not a higher law or the people’s law. Nevertheless, it enjoys legitimacy by providing a framework for lawmaking and providing a fair and democratic political process. Moreover, constitutions are adopted in very different historical, social, and political contexts, to serve different needs, and communities build on them and come to depend on them in different ways. Thus, Balkin’s theory may apply only to the U.S. Constitution, and the different functions of constitutions elsewhere may help to dispel any false sense of necessity in terms of serving as a higher law or the people’s law.This Article also expresses several doubts about Balkin’s theory of living originalism. It questions whether the theory is too good to be true: that is, whether judicial review has impeccable democratic credentials or instead allows an unelected elite to moderate the power of the majority. This Article next asks whether Balkin’s theory proves too much. He argues that the process of construction is essentially democratic. If, however, constitutions are justified by an act of popular sovereignty, and later constructions are legitimate for the same reasons, it is not clear why constitutional interpretations that change original meanings cannot be similarly justified. This Article ends by discussing Balkin’s distinction between interpretation and construction, especially as it relates to so-called “unwritten principles.” If, as Balkin suggests, unwritten principles can evolve over time, constitutional construction could, in effect, add new provisions to the Constitution, not only when necessary to implement its original underlying principles, but to implement new principles that were themselves adopted by construction.

The full text of this Article is available to download as a PDF.